Should New York Courts Hear Certified Questions from the Securities and Exchange Commission?

Abstract

Most states, including New York, allow their highest courts to consider unresolved questions of state law “certified” to them by certain federal courts. In 2007, Delaware expanded its scope of certification, allowing questions to be certified to its highest court by the Securities and Exchange Commission (“SEC”). This essay evaluates whether New York should follow Delaware’s lead and authorize the New York Court of Appeals to hear certified questions from the SEC. It concludes that, while Delaware’s predominance in number of incorporations may limit the practical impact of such a rule outside of Delaware, such a rule in New York might signal the primacy of state actors in determining corporate law and challenge Delaware’s control over U.S. corporate law.

Keywords: certification, administrative law, judiciary, federalism, Delaware, New York, corporate law, SEC, Securities & Exchange Commission, advisory opinions

JEL Classification: K22, K40, K41