Examining the power of federal courts to certify questions of state law

Attracted by the perception that certification accords with norms of federalism, and comity, federal courts have applied certification without serious examination of its jurisdictional validity. Close examination of certification's jurisdictional underpinnings reveals that they are contradictory and flawed. Men a federal court certifies questions of law to a state court, the procedural posture is either that of the federal court temporarily relinquishing jurisdiction over the case to the state high court-the "unitary conception" of certification; or that of the federal court abstaining pending resolution of an independent, streamlined case by the state high court-the "binary conception" of certification. The unitary conception is problematic because it may require state courts to exercise the federal judicial power improperly. The binary conception is problematic because it is inconsistent with current Supreme Court precedent. Moreover, although this precedential inconsistency can be mitigated, the binary conception of certification remains inconsistent with the fundamental purpose of federal diversity jurisdiction.