Negative Implications of State Law Entrenchment in Federal Courts

This Note considers the effects of state law entrenchment in federal courts. Entrenchment occurs when defendants, incentivized by higher pleading standards in federal court, continuously remove claims involving unsettled state law, effectively preventing a state high court from correcting erroneous federal interpretations. The entrenchment of unsettled state law in federal courts is a recent phenomenon and an underappreciated consequence of the divergence between federal and state pleading standards, which increases the likelihood of erroneous federal court predictions of unsettled state law. This Note exhibits the entrenchment phenomenon using a case study comprised of recent Arizona federal and state court cases. Finally, this Note suggests a three-pronged inquiry for federal courts to use when deciding whether to certify an entrenched and unsettled state claim. This inquiry weighs the costs of frequent certification against the negative effects of prolonged entrenchment.