7. A noted federal appellate judge has warned that when interpreting state law, federal courts often get

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7. A noted federal appellate judge has warned that when interpreting state law, “federal courts often get state law wrong because federal judges don’t know state law and are not the ultimate decisionmakers on it. Inevitably, this leads to considerable forum shopping of just the sort that Erie sought to avoid.” Calabresi,Federal and State Courts: Restoring a Workable Balance, 78 N.Y.U. L. Rev. 1293, 1300 (2003). He has suggested that in this situation,477the federal appeals court should write an opinion stating what it thinks “that law ought to be,”

and then certify the question to the state’s highest court. The state court would be free to decline the certification, but the federal court could then claim “authority to impose” its view

“provisionally, until the highest court of the state decides to resolve the question.” Id. at 1302.

Does this approach solve the problem of delay discussed in Note 6, above?

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Civil Procedure Cases And Materials

ISBN: 9780314280169

11th Edition

Authors: Jack Friedenthal, Arthur Miller, John Sexton, Helen Hershkoff

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