The U.S. Court of Appeals for the Second Circuit certifies unsettled questions of state law to state courts more frequently than any other circuit court. See Judith S. Kaye & Kenneth I. Weissman, “Interactive Judicial Federalism: Certified Questions in New York,” 69 Fordham L. Rev. 373, 397 (2000). This trend has continued in the past year, where the Second Circuit has requested certification of unsettled state law issues in at least four cases.

Purpose and Criteria

Certification is a mechanism by which the Second Circuit may request that a state’s highest court answer an unsettled question of state law. Parties may request certification, but the Second Circuit has the power to seek certification sua sponte. Second Circuit Local Rule 27.2 provides that “[i]f state law permits, the court may certify a question of state law to that state’s highest court.” Section 500.27 of the Rules of Practice of the Court of Appeals expressly allow for certification of state law questions by the Second Circuit to the New York Court of Appeals.

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