Here’s my Erie question for the day. Why do members of the Supreme Court spend so much time disagreeing about questions of state law in Erie cases? Why don’t they just certify the questions to the relevant state supreme court?
In Shady Grove, for example, a good deal of the disagreement among the members of the Court concerned whether New York Civil Practice Law § 901(b) was substantive, in the sense of following New York statutory damages actions into other court systems. Ginsburg thought it was. Stevens and Scalia thought it wasn’t (although Scalia said it didn’t matter either way). It was all speculation, of course, because without certification no New York state court would ever have occasion to answer the question. But why didn’t the Supreme Court certify the question to the New York Court of Appeals? Why do the Justices waste their time and ours writing opinions speculating about issues over which they have no interpretive authority?
Same thing in Gasperini. Lots of discussion about whether New York’s standard for overturning a jury’s damages award as excessive was akin to a cap on damages (in which case it would follow New York actions into other court systems) or procedural. Stevens and Ginsburg said it was substantive. Scalia said it was procedural. Who cares what they think? Ask the New York Court of Appeals.
Indeed, I don’t recall any case in which certification has been used by a federal court (even a lower federal court) when trying to decide an Erie question of whether a state rule displaces federal procedural law. I understand that there are other federal issues that need to be decided in such cases, but it would be nice to have state law nailed down first.
(Parallel posted on Prawfsblawg.)