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Keywords

diversity jurisdiction; certification; Uniform Certification Act; Erie guess; Erie

Abstract

In December 2018, the U.S. Court of Appeals for the Sixth Circuit declared Tennessee’s punitive damages cap statute unconstitutional under the state’s constitution. Nearly five years later, however, Tennessee state courts are still reducing punitive damage awards under the statute—and they must, because the Tennessee Supreme Court has never addressed the statute’s constitutionality. See, the Sixth Circuit’s decision was merely an Erie guess as to how Tennessee courts would resolve the unsettled state law issue, and the Tennessee Supreme Court has since indicated that it would reach the opposite conclusion. But the Tennessee high court had already had an opportunity to do so explicitly in the very case in which the Sixth Circuit refused to enforce the punitive damages cap. The federal district court had certified questions about the statute’s constitutionality to the Tennessee Supreme Court, which kept the case on its docket for seven months only to decline the questions. Given this response, the Sixth Circuit understandably opted against a second attempt at certification on appeal. As a result, under the current state of the law in Tennessee, plaintiffs who receive identical punitive damage awards from juries in federal and state courts could ultimately recover drastically different amounts.

This Tennessee example well illustrates some of the difficulties that federal courts and litigants face when state supreme courts decline certified questions of unsettled state law: the risk of an incorrect Erie guess that creates inconsistent results in federal and state courts, the potential for months-long delays while the case lingers before the state court, and the resulting reluctance of federal courts to certify in the future. Further, because few states articulate criteria for accepting or declining certification and no state’s certification scheme requires the state court to explain its reasons for declining certified questions, those seeking certification are left with little guidance as to how to avoid these dreaded rejections by state high courts. To provide that guidance, this Article studies certification practices in the three jurisdictions in which certified questions were declined most frequently over the last two decades and identifies patterns in when and why state courts decline certification. The Article then proposes procedural solutions, including a presumption mechanism for the acceptance of certified questions in appropriate cases, to reduce the frequency of certification denials and better equip federal courts and litigants to predict which certified questions state courts are likely to answer.

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