Certification Comes of Age: Reflections on the Past, Present, and Future of Cooperative Judicial Federalism
Ripple, Kenneth F & Gallagher, Kari Anne
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Abstract
In 1995, the American Judicature Society (AJS) undertook a comprehensive survey of certification. This Article uses the AJS’s survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification? Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign?
Beyond these questions, this Article also will look at how certification has expanded beyond its diversity origins to other areas of law where state law expertise is uniquely important, such as habeas and the Armed Career Criminal Act (ACCA). Finally, the Article will consider ways in which the certification process can be further refined and expanded for the benefit of both the state and federal judiciaries as well as litigants.