The Volokh Conspiracy

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5th Cir. Judge Willett (former Tex. Sup. Ct. Justice Willett) Praises His Old Colleagues' Speed ….


Federal courts often have to apply state law; when the state law is not clear, they could either infer how state courts would interpret it, or certify the question to the state's supreme court (if that court authorizes such certifications). In Friday's McMillan v., Inc., a Fifth Circuit panel—Judge Don Willett (who used to sit on the Texas Supreme Court), joined by Judge Gregg Costa and Jacques Wiener—certified to the Texas Supreme Court the question:

Under Texas products-liability law, is Amazon a "seller" of third-party products sold on Amazon's website when Amazon does not hold title to the product but controls the process of the transaction and delivery through Amazon's Fulfillment by Amazon program?

Of course, such certification may sometimes delay the federal case, but here's what Judge Willett had to say:

A final note, regarding timing. When certification was raised at oral argument, McMillan's counsel, while conceding "clearly, that's an option," surmised that any ruling from the Texas SupremeCourt might take "a couple of years" due to COVID-related delays. Such concern is misplaced. To its immense credit, and for several years in a row, the Supreme Court of Texas has decided every argued case by the end of June. And the coronavirus has failed to slow the Court's pace this Term. To be sure, today's case is a vital and vexing one. But by long tradition, the Texas Supreme Court graciously accepts and prioritizes certified questions from this circuit, and we are confident that the Court's impressive streak of timely clearing its docket will remain unbroken.51

And here's footnote 51:

51 No pressure.