Academic journal article William and Mary Law Review

The Viability of Certification in Federal Appellate Procedure

Academic journal article William and Mary Law Review

The Viability of Certification in Federal Appellate Procedure

Article excerpt



     A. Certification's Inception: Resolving
        Intra-Circuit Splits
     B. Certification and the Judiciary Act of
        1891: Resolving Inter-Circuit Splits
     C. Certification and the Judiciary Act of
        1925: Reducing the Court's Docket

     A. The Supreme Court's Original and
        Appellate Jurisdictions
     B. Answering a Certified Question that Is
        Dispositive of the Entire Case
     C. The Dual Definitions of Original Jurisdiction

     A. Current Restrictions on the Use of Certification
     B. "Recent" Uses of Certification
     C. United States v. Seale: Certification in the
        21st Century
     D. Maximizing the Benefits of Certification


In the summer of 2009, a federal circuit court of appeals used an appellate mechanism that has been described as "a dead letter." (1) Given its dead-letter status, it should come as little surprise that "there are few lawyers (and perhaps few circuit judges) who even know it remains an option." (2) Despite this reality, the Fifth Circuit Court of Appeals, sitting en banc, utilized Supreme Court Rule 19, which provides: "A United States court of appeals may certify to [the Supreme Court] a question or proposition of law on which it seeks instruction for the proper decision of a case." (3) The Fifth Circuit was divided evenly over the proper resolution of a legal issue, so it certified a question of law to the Supreme Court. (4) One can only speculate as to whether the Fifth Circuit appreciated at the time it issued the certified question (5) that it was employing an appellate mechanism that the Supreme Court has discouraged, and that circuit courts have rarely implemented in the last fifty years. (6) Despite these hostilities, certification has existed in federal statutory law for more than two centuries. (7) Notwithstanding certification's deep historical roots, few lawyers, legal scholars, and judges know that it exists) Moreover, despite a dearth of academic literature and recent case law on the topic, certification remains a relevant aspect of federal appellate practice. (9)

By entering the somewhat dormant academic debate on certification, this Note seeks to assess the history, constitutionality, and viability of certification. Part I provides a historical overview of the arguments that Congress, the Supreme Court, and legal scholars have advanced to justify certification's inception and continued existence. Part II addresses whether certification is wholly constitutional or whether, even if it is constitutional, it has been unconstitutionally applied. Part III evaluates the present and future viability of certification. Ultimately, this Note concludes that certification remains a viable, albeit broken, appellate mechanism. In order to maximize the benefits that it has to offer, the Supreme Court must reevaluate and revise certification's place in federal appellate procedure.


In order to assess the future viability of certification, one must first understand and appreciate the role that certification has played in federal appellate procedure. (10) Through an examination of statutory law and judicial interpretation, Part I tracks the expansion, limitation, and transformation of certification from its initial conception through its multiple revisions. This Part also examines the nexus between the Supreme Court and certification, and analyzes the Justices' reasons for certification's continued use.

A. Certification's Inception: Resolving Intra-Circuit Splits

Certification has deep historical roots that extend as far back as 1802. (11) At the time, there were only six circuit courts, and each individual court "consist[ed] of the justice of the supreme court residing within the said circuit, and the district judge of the district where such court [was] holden. …

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