Interjurisdictional Certification and Choice of Law

There is a story, probably apocryphal, that, at a 1970s conference discussing the great potential and even greater problems of some economically developing countries, a rather cynical American economist is supposed to have remarked that "Brazil is the country of the future-and always will be." Some commentators believe that much the same could be said about the certification process, but with greater accuracy. Certification has beguiled and to some extent disappointed two generations of legal scholars.' Intended to resolve problems that arise when a court of one jurisdiction must apply the law of another jurisdiction, certification is the process by which the first court may inquire of a court in the jurisdiction whose law is at issue for help in determining what the law is. The certification process is inherently attractive be-cause it eliminates the need for a court either to guess at another jurisdiction's uncertain law or to refrain altogether from trying to apply that law. The difficulty that certification can ease typically arises in one of two situations.

The first situation occurs when a federal court, for whatever reason, must identify and apply the substantive law of a state.Federal courts hearing diversity cases are the most likely to inquire into state law, but the problem can also arise when a federal court's subject-matter jurisdiction is based on the presence of a federal question. The second situation occurs when a state court's own conflict-of-laws rules direct it to apply the law of another state.