Certification over Erie Guess in Surrogate‑Signed Arbitration Agreements: Commentary on Stanford v. Brandon Nursing

I. Introduction

The Fifth Circuit’s decision in Stanford v. Brandon Nursing and Rehabilitation Center, L.L.C., No. 24‑60509 (5th Cir. Nov. 20, 2025), does not resolve the underlying nursing‑home negligence dispute or even definitively decide whether the parties must arbitrate. Instead, the panel majority (Judge Southwick, joined by Judge Ramirez) takes the relatively rare step of certifying a question of state law to the Mississippi Supreme Court, while Judge Oldham authors a sweeping dissent criticizing the modern federal practice of certification.

At the center of the case is a narrow but legally significant question: under Mississippi’s version of the Uniform Health‑Care Decisions Act, did an adult brother validly act as a surrogate decision‑maker to sign an arbitration agreement when the incapacitated patient had an adult son who was “reasonably available” and willing to serve as surrogate? The answer determines the validity of the arbitration clause and thus whether the case proceeds in court or in arbitration.

Beyond this immediate issue, the decision is important for two reasons:

• It highlights a gap in Mississippi law on the meaning of surrogate “priority” under Mississippi Code § 41‑41‑211(2), a provision with obvious practical importance for hospitals, nursing homes, and families of incapacitated adults.
• It exposes a sharp intra‑circuit divide over the use of certified questions: the majority follows the Fifth Circuit’s established three‑factor test and certifies, whereas the dissent argues that routine certification is historically unfounded, constitutionally questionable, and institutionally corrosive.

This commentary explains the factual and legal background, summarizes the opinions, analyzes the precedents and reasoning, and evaluates the potential impact on Mississippi health‑care law, nursing‑home arbitration disputes, and federal–state judicial relations.

II. Summary of the Opinion

A. Factual and Procedural Background

Mark Stanford was a resident of Brandon Nursing and Rehabilitation Center in Mississippi. In 2022, Stanford—who was on oxygen—ignited a lighter near his oxygen concentrator, starting a fire and sustaining second- and third-degree burns. The Mississippi State Department of Health cited the facility for failing to provide adequate supervision and for failing to protect residents from foreseeable fire hazards, invoking federal long‑term care regulations.

Through his court‑appointed conservator and guardian, Erik Phillips, Stanford sued Brandon Nursing and related entities in federal court (Southern District of Mississippi) for negligence and medical malpractice. Federal subject‑matter jurisdiction rested on diversity of citizenship.

Brandon Nursing moved to compel arbitration, relying on a 2017 arbitration agreement included in Stanford’s admission paperwork. That agreement had been signed not by Stanford (who lacked capacity), but by his brother, Russell Phillips, who signed as a “health surrogate.” It is undisputed that:

• Stanford lacked capacity to make his own health‑care decisions.
• He had not designated a surrogate or executed a health‑care power of attorney.
• He had an adult son who, according to the plaintiff, was “reasonably available” and willing to act as surrogate.

Stanford’s guardian challenged the motion to compel, arguing that under Mississippi’s Uniform Health‑Care Decisions Act, a lower‑priority family member (an adult brother) cannot act as surrogate if a higher‑priority family member (an adult child) is reasonably available. The district court agreed and held that Russell Phillips lacked authority to bind Stanford to arbitration, rendering the arbitration agreement invalid. Brandon Nursing took an interlocutory appeal under 9 U.S.C. § 16(a)(1).

B. The Majority: Certification to the Mississippi Supreme Court

The majority begins by noting the standard of review: it reviews the denial of the motion to compel arbitration and the district court’s interpretation of state law de novo, and factual findings for clear error, citing Gross v. GGNSC Southaven, L.L.C., 817 F.3d 169, 175 (5th Cir. 2016).

Under the Federal Arbitration Act (FAA), courts undertake a two‑part inquiry: (1) whether a valid agreement to arbitrate exists and (2) whether the dispute falls within its scope. See Adams Community Care Center, LLC v. Reed, 37 So. 3d 1155, 1158 (Miss. 2010) (quoting East Ford, Inc. v. Taylor, 826 So. 2d 709, 713 (Miss. 2002)). Only the first portion of the first prong—valid formation—is at issue.

Mississippi applies ordinary contract law to the validity of arbitration agreements, including the requirement that both parties (or their authorized agents) have legal capacity. See Reed, 37 So. 3d at 1158. Capacity in this case turns on whether Russell Phillips was a valid surrogate decision‑maker under Mississippi’s Uniform Health‑Care Decisions Act, Miss. Code Ann. § 41‑41‑211.

Section 41‑41‑211(2) provides that if an incapacitated adult has no appointed agent or guardian, “any member of the following classes of the patient’s family who is reasonably available, in descending order of priority, may act as surrogate”:

1. The spouse (unless legally separated);
2. An adult child;
3. A parent; or
4. An adult brother or sister.

The core dispute is whether the existence of a “reasonably available” higher‑priority family member categorically bars lower‑priority family members from acting as surrogate. Stanford argues that priority is a strict precondition: if an adult child is reasonably available and willing, a brother cannot serve. Brandon Nursing argues that any listed family member may act; “priority” matters only if multiple potential surrogates disagree.

The majority concludes that:

• The statutory phrase “any member of the following classes … in descending order of priority, may act as surrogate” is ambiguous on this point.
• The statute is silent on whether the presence of a higher‑priority relative precludes lower‑priority surrogates.
• No Mississippi decision has interpreted this question, and the official comments to the Uniform Act (which Mississippi adopted from a 1993 model law) are unhelpful.

Given this uncertainty, the court invokes Mississippi Rule of Appellate Procedure 20(a), which authorizes certification when a question of state law is determinative and there is no controlling Mississippi Supreme Court precedent. The panel also applies the Fifth Circuit’s three‑factor test for certification from Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 549 (5th Cir. 1998), and Swindol v. Aurora Flight Sciences Corp., 805 F.3d 516, 522 (5th Cir. 2015):

1. Closeness of the question and availability of state law sources.
2. Comity considerations.
3. Practical limitations (delay, ability to frame a helpful issue).

The majority holds all three factors favor certification:

• The question is “close”; the statute is silent; no case law or commentary exists; “an Erie guess in these circumstances would be a leap into the dark,” quoting Johnson v. Miller, 98 F.4th 580, 586 (5th Cir. 2024).
• Comity strongly favors allowing Mississippi’s highest court to authoritatively construe a state statute of recurring importance.
• Although certification entails delay, the need to avoid misinterpreting state law and creating potential future conflict outweighs practical concerns.

Accordingly, the panel certifies this question to the Mississippi Supreme Court:

Does Mississippi’s Uniform Health‑Care Decisions Act require health care providers, in the absence of a designated surrogate, to identify qualifying family members and ensure that no such family member with higher priority is reasonably available under the circumstances before relying on a health care decision made by a lower‑priority family member?

The panel emphasizes that this formulation should not limit the Mississippi Supreme Court’s ability to refine, broaden, or otherwise reframe the issue in its response.

C. Judge Oldham’s Dissent: A Comprehensive Critique of Certification

Judge Oldham files an extensive dissent that is, in substance, a constitutional and historical essay on diversity jurisdiction, Erie, abstention doctrines, and the practice of federal courts certifying questions of state law.

His key points include:

• Historical context: At the Founding, nearly all federal lower‑court business was diversity cases, while most federal‑question cases were decided in state courts. Diversity jurisdiction was created against strong Anti‑Federalist opposition, with contested rationales (debtor‑creditor concerns, fears of state legislation, but weak evidence of state‑court bias).
• Swift, Erie, and the shift in legal theory: Before Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts followed Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), distinguishing “local” from “general” law and treating judicial decisions as evidence of law, not its source. Erie replaced this with legal realism: there is “no federal general common law”; state law is what state courts (and legislatures) say it is.
• Abstention doctrines as post‑Erie devices: Cases like Pullman, Burford, Thibodaux, Younger, and Colorado River authorized federal courts, under limited circumstances, to refrain from exercising jurisdiction in deference to state processes.
• Rise of certification: Starting with Clay v. Sun Insurance Office Ltd., 363 U.S. 207 (1960), the Supreme Court embraced certification as a tool to avoid unnecessary constitutional rulings and minimize conflict with state policy; subsequent cases like Lehman Brothers v. Schein, 416 U.S. 386 (1974), praised certification as promoting “cooperative judicial federalism.”
• Eight problems with modern certification practices:
  1. Certification inverts Founding‑era understandings about federal and state courts’ equal capacity to “find” law.
  2. Claimed “cooperative federalism” is illusory; the real federalism tension lies in federal‑question jurisdiction, not in diversity courts applying state law.
  3. Certification conflicts with federal courts’ “virtually unflagging obligation” to exercise jurisdiction Congress has given them, echoing concerns voiced in abstention dissents.
  4. Certification patronizes state courts, treating them as adjuncts that supply advisory answers, rather than equal judicial partners with their own dockets and priorities.
  5. Serious Article III concerns: certification solicits non‑judicial advisory opinions from state courts, which federal courts then incorporate, even though federal judges themselves cannot issue advisory opinions.
  6. Certification distorts state court appellate processes by bypassing trial courts and intermediates, and effectively creating a fast‑track to state supreme courts for litigants in federal court.
  7. Standards for when to certify are amorphous and subjective (“closeness” of questions, nebulous “comity”), encouraging inconsistent and arbitrary use.
  8. Certification is inefficient: it fragments litigation, increases cost and delay, and often yields no practical benefit compared with a straightforward Erie guess.
• Proper but narrow role for certification: Relying on cases such as Meredith v. Winter Haven, 320 U.S. 228 (1943), Mckesson v. Doe, 592 U.S. 1 (2020), Pullman, and Thibodaux, the dissent argues that certification is appropriate only in “exceptional instances”:
  • To avoid deciding a serious federal constitutional question that might become moot if state law is clarified differently (as in Mckesson).
  • Where federal adjudication of a state‑law issue risks “serious disruption” of state governmental functions (as in Thibodaux or major Ex parte Young actions).
• Application to this case: The surrogacy question involves only a private dispute about contract formation in a nursing‑home admission; it does not implicate constitutional issues or state administrative schemes. No party requested certification. Under the dissent’s standard, the court should have made an Erie guess rather than delay resolution by certifying.

Judge Oldham thus “respectfully dissent[s,”] arguing that this case exemplifies the “overcertification” he fears and urging the court to “swear off the drink of overcertification” in favor of exercising the Article III duty to decide.

III. Legal and Factual Background

A. Nursing‑Home Arbitration and the Federal Arbitration Act

Nursing‑home admission agreements commonly include arbitration clauses requiring residents or their representatives to resolve disputes in private arbitration rather than in court. The FAA, 9 U.S.C. § 1 et seq., makes written arbitration provisions in contracts involving interstate commerce “valid, irrevocable, and enforceable,” subject to generally applicable state contract defenses.

Mississippi recognizes that the FAA applies to nursing‑home admission agreements with arbitration clauses. See Adams Community Care Center, LLC v. Reed, 37 So. 3d 1155, 1158 (Miss. 2010). But enforceability depends on ordinary contract principles, including:

• A valid offer and acceptance;
• Consideration;
• Absence of unconscionability or other contract defenses; and
• Crucially in this case, that the person signing on behalf of the resident has authority to bind the resident.

Disputes frequently arise over whether a family member or facility representative who signed the admission and arbitration forms had legal authority, especially when the resident lacked capacity. This has led to a line of Mississippi and Fifth Circuit cases scrutinizing the scope of agency, power of attorney, guardianship, or statutory surrogate authority.

B. Mississippi’s Uniform Health‑Care Decisions Act

Mississippi has adopted a version of the Uniform Health‑Care Decisions Act, codified at Miss. Code Ann. § 41‑41‑201 et seq. Section 41‑41‑211 governs surrogate decision‑making for adults who lack capacity and who have not appointed an agent or guardian to make health‑care decisions.

Key features:

• Trigger: The patient’s primary physician must determine that the patient lacks capacity.
• If the patient designated an agent (e.g., via advance directive or power of attorney), that agent ordinarily makes decisions.
• If no agent/guardian is available: § 41‑41‑211(2) provides a default “family hierarchy” of potential surrogates:
  1. Spouse (unless legally separated);
  2. Adult child;
  3. Parent;
  4. Adult sibling.
• Members of these classes may act as surrogate if they are “reasonably available,” and the statute states that, “in descending order of priority,” such family members “may act as surrogate.”
• Other subsections allow:
  • Individuals to disqualify certain persons from serving as surrogate (§ 41‑41‑211(5)); and
  • Handling conflict when members of a class are evenly divided, disqualifying that class and all lower classes (§ 41‑41‑211(8)).

The Act has been interpreted “strictly” by Mississippi courts, which insist that its “plain and unequivocal language” be followed. See Tarvin v. CLC of Jackson, LLC, 193 So. 3d 633, 637–38 (Miss. 2016); Belhaven Senior Care, LLC v. Smith, 359 So. 3d 612, 618 (Miss. 2023).

However, as the Fifth Circuit notes in Stanford, Mississippi’s appellate courts have not yet addressed the specific question here: whether the availability of a higher‑priority family member bars a lower‑priority member from serving as surrogate.

C. The Role of Surrogate Authority in Arbitration Agreements

The underlying substantive wrong alleged here is negligence leading to a catastrophic fire. But the immediate issue is procedural: can the nursing home force arbitration? That, in turn, depends on whether the arbitration agreement is a valid contract binding Stanford.

Because Stanford lacked capacity, the nursing home relies on his brother’s purported authority as a “surrogate.” If Russell Phillips was a valid surrogate, then, under Mississippi law, he could make “health‑care decisions” for Stanford, including signing an arbitration clause as part of admission paperwork—assuming such a signature falls within the scope of surrogate authority (a proposition Mississippi courts have largely accepted in comparable contexts).

Thus, the statutory interpretation question about § 41‑41‑211(2) is dispositive of the FAA issue: no surrogate authority, no valid arbitration agreement.

D. Erie, Diversity Jurisdiction, and Certification

Because this is a diversity case, the Fifth Circuit must apply Mississippi substantive law under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and subsequent decisions like West v. AT&T Co., 311 U.S. 223 (1940) and Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).

When the state’s highest court has not decided a particular question, a federal court ordinarily makes an “Erie guess”: it predicts how the state supreme court would resolve the issue, using all relevant sources (statutes, analogous precedents, treatises, etc.).

Certification modifies this dynamic: where state law is genuinely uncertain and the issue is significant, a federal court may ask the state’s highest court to answer a discrete question of state law. The answer then binds the federal court’s subsequent application of state law. The Fifth Circuit uses certification pursuant to state court rules (here, Mississippi Rule of Appellate Procedure 20(a)) and its own internal criteria (from Williamson, Swindol, McMillan v. Amazon.com, Inc., 983 F.3d 194, 202 (5th Cir. 2020), and Johnson v. Miller).

IV. Precedents and Authorities Cited

A. Arbitration and Contract‑Formation Cases

• Adams Community Care Center, LLC v. Reed, 37 So. 3d 1155 (Miss. 2010):
  • Confirms that the FAA applies to nursing‑home admission agreements containing arbitration clauses.
  • Articulates the two‑step analysis: (1) existence of a valid arbitration agreement; (2) coverage of the dispute.
• East Ford, Inc. v. Taylor, 826 So. 2d 709 (Miss. 2002):
  • Source of the FAA two‑prong framework applied in later Mississippi arbitration cases.
• Reed and common law of contracts:
  • Mississippi applies “ordinary contract law” to determine the validity of arbitration agreements, including capacity and authority of signatories.
• Gross v. GGNSC Southaven, L.L.C., 817 F.3d 169 (5th Cir. 2016):
  • Cited for standards of review.
  • Part of a line of Fifth Circuit nursing‑home arbitration cases examining whether relatives had legal authority to bind residents.

B. Mississippi Statutory Interpretation and Health‑Care Decisions

• DePriest v. Barber, 798 So. 2d 456 (Miss. 2001):
  • Reiterates that the “primary rule” of statutory construction is to ascertain legislative intent from the statute as a whole and from the language used.
• Lutz Homes, Inc. v. Weston, 19 So. 3d 60 (Miss. 2009):
  • States that Mississippi courts resort to interpretive canons only if a statute is ambiguous or silent on a specific issue.
• Tarvin v. CLC of Jackson, LLC, 193 So. 3d 633 (Miss. 2016) and Belhaven Senior Care, LLC v. Smith, 359 So. 3d 612 (Miss. 2023):
  • Hold that the Health‑Care Decisions Act must be strictly interpreted; courts must follow its “plain and unequivocal language.”
  • These precedents make the statutory‑interpretation issue in Stanford particularly sensitive: having insisted on strict adherence to the text, Mississippi’s own high court has a strong interest in defining that text’s meaning.
• State ex rel. Fitch v. Yazaki North America, Inc., 294 So. 3d 1178 (Miss. 2020):
  • Confirms that when Mississippi adopts a uniform law, courts may consult the official comments to that uniform act if the statute is ambiguous.
  • In Stanford, the Fifth Circuit notes that the relevant comments on the Uniform Health‑Care Decisions Act do not address the surrogate‑priority issue.

C. Certification and Erie‑Related Precedents

• Mississippi Rule of Appellate Procedure 20(a):
  • Allows certification of a question of Mississippi law from a federal court when “determinative of all or part of the cause” and no clear controlling Mississippi Supreme Court precedent exists.
• Williamson v. Elf Aquitaine, Inc., 138 F.3d 546 (5th Cir. 1998):
  • Sets out the Fifth Circuit’s three certification factors: (1) closeness and sufficiency of sources; (2) comity; (3) practical limitations.
• Swindol v. Aurora Flight Sciences Corp., 805 F.3d 516 (5th Cir. 2015):
  • Applies the Williamson framework and reinforces that certification is “appropriate” when a determinative question of state law lacks controlling precedent.
• Johnson v. Miller, 98 F.4th 580 (5th Cir. 2024):
  • Warns that an Erie guess in the absence of state‑law guidance may be a “leap into the dark”; cited by the majority to justify certification here.
• Mckesson v. Doe, 592 U.S. 1 (2020) and related cases:
  • Invoked by the dissent as examples of “exceptional” certification, especially where clarifying state law may avoid resolving grave federal constitutional questions.

D. Broader Federal‑Courts Canon Cited in the Dissent

Judge Oldham’s dissent draws deeply on foundational federal‑courts doctrine and history. Among many others, it cites:

• Founding‑era materials: The Federalist No. 80 (Hamilton), Anti‑Federalist writings (Federal Farmer, Brutus, Centinel), and Elliot’s Debates, all to illustrate conflicting views on diversity jurisdiction and the anticipated role of state courts.
• Diversity and early federal‑courts cases: Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61 (1809), and Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816).
• Swift/Erie line: Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842); Erie, 304 U.S. 64 (1938); West, Klaxon.
• Abstention doctrines: Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941); Burford v. Sun Oil Co., 319 U.S. 315 (1943); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959); Younger v. Harris, 401 U.S. 37 (1971); Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976).
• Certified‑question cases: Clay v. Sun Insurance Office Ltd., 363 U.S. 207 (1960); Lehman Brothers v. Schein, 416 U.S. 386 (1974); Bellotti v. Baird, 428 U.S. 132 (1976); Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).
• Article III and advisory‑opinion cases: Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792); Gordon v. United States, 69 U.S. 561 (1864); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); Ortiz v. United States, 585 U.S. 427 (2018).

These authorities are marshaled to argue that certification, as now practiced, is historically anomalous, under‑theorized, and potentially inconsistent with Article III’s “judicial power” requirement.

V. The Court’s Legal Reasoning

A. The Majority’s Approach to Mississippi’s Surrogate Statute

1. Identifying the Ambiguity

The textual fulcrum is § 41‑41‑211(2), which states that, absent a designated agent or guardian, “any member of the following classes of the patient’s family who is reasonably available, in descending order of priority, may act as surrogate.”

Two competing readings emerge:

• Stanford’s reading (strict priority): “In descending order of priority” is a hard gate. The health‑care provider must first determine whether a spouse (if any) is reasonably available. If not, then whether an adult child is reasonably available, and so on. A lower‑priority relative (here, an adult sibling) cannot serve if a higher‑priority relative (an adult child) is both reasonably available and willing.
• Brandon Nursing’s reading (flexible priority / tie‑breaker): “Any member” of the listed classes may act, so long as they are “reasonably available.” The “descending order of priority” matters only when there are disagreements or to resolve conflicts within or among classes, as elaborated in subsections (5) and (8). Under this view, a brother may serve even if an adult child is available, unless and until there is actual conflict.

Both sides invoke “plain language” and public policy. Stanford emphasizes the statutory goal of ensuring that health‑care decisions are made by the most appropriate, highest‑priority family member, arguing that priority is a “precondition to surrogacy.” Brandon Nursing emphasizes the need for practical flexibility in real‑world health‑care settings and relies on related provisions about disqualification and intra‑class deadlock to argue that the hierarchy is only activated in case of disagreement.

The majority concludes that the statute is genuinely ambiguous on this precise point; the text can plausibly bear both readings, and nothing in the structure or other provisions decisively resolves the ambiguity.

2. Limits of Interpretive Aids

Under Mississippi interpretive principles (DePriest, Lutz Homes), courts start with text and resort to interpretive canons only if a statute is ambiguous. Moreover, Mississippi courts have insisted on “strict interpretation” of the Health‑Care Decisions Act (Tarvin, Belhaven).

Because Mississippi adopted its Act from a uniform law, the panel considers whether the official comments to the Uniform Health‑Care Decisions Act shed light on the issue, in line with Fitch v. Yazaki North America. The court finds no relevant commentary addressing whether a lower‑priority family member can act when a higher‑priority member is available.

The upshot: traditional tools—text, structure, Mississippi case law, and uniform‑law commentary—do not yield a clear answer. That absence of guidance, coupled with a statutory command of “strict” construction, leads the panel to refrain from its own Erie prediction.

3. Connection to Contract Formation and the FAA

The majority ties this interpretive dilemma back to contract law. Under Mississippi law, a valid contract requires that both parties be competent or represented by someone with legal capacity to act on their behalf. If Russell Phillips was not a valid surrogate under § 41‑41‑211(2), then he lacked authority to sign binding agreements, including arbitration clauses, for Stanford. Without a valid surrogate, the arbitration agreement would fail for lack of proper capacity/authority on Stanford’s side.

Thus, the answer to the certified state‑law question is “determinative” of at least this portion of the case: it dictates whether the FAA compels arbitration or leaves the case to proceed in court.

B. The Decision to Certify

To justify certification, the majority proceeds in two steps:

1. Shows that Mississippi’s own certification standard is satisfied (determinative issue, no controlling precedent).
2. Applies the Fifth Circuit’s three Williamson/Swindol factors.

On the first, the panel notes:

• The surrogate‑priority issue is “determinative of all or part of” the cause: the FAA motion to compel arbitration rises or falls with it.
• No Mississippi Supreme Court decision addresses this point.

On the Williamson factors:

1. Closeness / sources of law: Because the statute is silent, there is no Mississippi precedent and no helpful uniform‑law comment, the panel believes that any Erie guess would be speculative. Citing Johnson v. Miller, it characterizes such a guess as a “leap into the dark.”
2. Comity: The issue is a matter of first impression under an important, commonly applicable state statute affecting patient autonomy and health‑care decision‑making. Comity favors giving the state’s own high court the first and authoritative opportunity to construe this ambiguous provision.
3. Practical limitations: While certification entails delay and the risk the state court may decline to answer, the panel concludes that these concerns are outweighed by the risk of misinterpreting a significant state statute and later conflict with state‑court decisions.

The majority thus models the Fifth Circuit’s willingness to certify when:

• The statutory question is genuinely open and likely to recur;
• The record provides a clean legal issue; and
• An Erie guess would be especially speculative and potentially disruptive to state law development.

C. The Dissent’s Alternative Framework

1. Historical and Theoretical Critique

Judge Oldham’s dissent is less about the text of § 41‑41‑211(2) and more about the structural role of federal courts. He draws three main historical arcs:

• Diversity jurisdiction’s origins: The Virginia Plan, the Madisonian Compromise, the Judiciary Act of 1789, and Anti‑Federalist fears about federal courts “destroying” state judiciaries.
• Swift and Erie: The transition from judges as “finders” of a common law that exists independently of any sovereign to judges as “makers” of law, with Erie limiting federal courts to applying state law except where federal law governs.
• Abstention and certification: The post‑Erie proliferation of doctrines (Pullman, Burford, etc.) and, later, certification, which he views as mechanisms for federal courts to avoid their constitutional responsibility to decide cases properly before them.

He then states eight objections to modern certification:

1. Historical inversion: Certification takes what was once normal (federal courts deciding state law in diversity cases) and treats it as exceptional, an inversion unsupported by Founding‑era understanding.
2. Misplaced “cooperative federalism” rhetoric: The real federalism struggle lies in the dominance of federal‑question jurisdiction; certification does little to alleviate the Anti‑Federalists’ true concerns.
3. Duty to exercise jurisdiction: Certification resembles abstention in undermining the “virtually unflagging obligation” to decide cases; he invokes Meredith’s admonition that difficulties in state law are not sufficient grounds to decline jurisdiction.
4. Patronizing to state courts: Treating state supreme courts as research assistants issuing non‑binding advisory opinions demeans their equal collegiate status. He cites empirical work suggesting that federal certification can disrupt state high‑court dockets and decision patterns.
5. Article III problems: Certification involves an Article III court inviting a state court to perform a non‑judicial function (an advisory opinion), which federal courts themselves cannot perform. He questions how this can be reconciled with cases like Hayburn’s Case and Gordon, and whether such advisory determinations are ever properly within the Supreme Court’s § 1257 appellate jurisdiction.
6. Distortion of state appellate hierarchy: Certification bypasses lower state courts and, especially in discretionary‑review systems (e.g., Texas), may give federal‑case litigants disproportionate access to state supreme courts compared to ordinary state‑court litigants.
7. Lack of coherent standards: Because ambiguity is “in the eye of the beholder,” the existing three‑factor test is little more than unguided discretion, leading to inconsistent and unpredictable certification practice.
8. Inefficiency: Certification divides a single case across two court systems, necessarily increasing delay and cost; he cites commentary to the effect that deciding whether to certify often takes as much work as deciding state law directly.

2. A Narrow “Exceptional Circumstances” Standard

The dissent distills Supreme Court precedent into a much narrower standard: certification is appropriate only when:

• A serious federal constitutional question could be avoided if state law is clarified differently (e.g., Mckesson, Pullman); or
• Answering a state‑law question risks serious disruption of state government (e.g., determining the scope of state sovereign powers in Thibodaux, or granting broad injunctive relief against state officials in Ex parte Young–type litigation, as in Whole Woman’s Health v. Jackson).

Mere difficulty, absence of precedent, or the closeness of a question does not suffice.

3. Application to Stanford

Applying this framework, Judge Oldham concludes that:

• The case presents a routine private dispute over contract formation, not a constitutional controversy or challenge to core state governmental functions.
• No party requested certification; both presumably preferred speed over an uncertain, likely lengthy certification process.
• The record is well‑developed, and the legal question, while novel, is no more “close” than many others that federal courts routinely decide.
• Given Mississippi’s sparse adoption of the Uniform Health‑Care Decisions Act (few states have adopted the 1993 Act), it is questionable social value to ask Mississippi’s highest court to expend scarce judicial resources for the sake of a uniform act that has not in fact become widely “uniform.”

In the dissent’s view, the panel should have conducted an ordinary Erie analysis—text, structure, analogous state cases, out‑of‑state decisions like Corum v. Roswell Senior Living, LLC, 248 P.3d 329 (N.M. Ct. App. 2010)—and predicted how the Mississippi Supreme Court would decide, rather than delay for a certified question.

VI. Impact and Implications

A. For Mississippi Health‑Care Surrogacy Law

Substantively, Stanford does not yet establish a definitive rule on surrogate priority under § 41‑41‑211(2); that will depend on the Mississippi Supreme Court’s response. Nonetheless, the certified question itself signals:

• The importance of clarity regarding whether health‑care providers must:
  • Identify all “reasonably available” members in the statutory priority list; and
  • Confirm that no higher‑priority relative is available before accepting decisions from a lower‑priority relative.
• The likelihood that whatever rule Mississippi adopts will significantly affect hospitals, nursing homes, and long‑term care facilities in their admission and consent practices.

Two plausible paths for the Mississippi Supreme Court:

1. Strict priority rule (Stanford’s position):
   • Health‑care providers would have a duty to inquire about and, to a reasonable extent, verify whether a spouse, adult child, or parent is “reasonably available” before accepting decisions from an adult sibling.
   • Failure to follow priority could invalidate not only arbitration agreements but also potentially other health‑care decisions (consent to treatment, DNR orders, etc.).
2. Flexible priority/tie‑breaker rule (Brandon Nursing’s position):
   • Any listed family member who is reasonably available may act as surrogate in the absence of conflict; priority governs only when multiple relatives disagree or seek to act simultaneously.
   • This approach would reduce the administrative burden on providers but might increase the risk of litigation over intra‑family disputes.

Either way, Stanford guarantees that Mississippi’s high court will now have to confront this statutory ambiguity and articulate a coherent rule, likely with general impact beyond arbitration and beyond nursing homes.

B. For Nursing‑Home Arbitration Agreements in Mississippi

This case continues a line of Mississippi and Fifth Circuit decisions scrutinizing the authority of persons who sign arbitration clauses on behalf of incapacitated residents. Depending on how Mississippi answers the certified question:

• If the court adopts a strict priority rule:
  • Facilities may face increased challenges to the enforceability of arbitration clauses where admission papers were signed by lower‑priority relatives without clear documentation that no higher‑priority relative was “reasonably available.”
  • Providers may need to revise admission protocols to:
    • Document efforts to identify higher‑priority relatives;
    • Obtain written attestations about availability; and
    • Train staff on surrogate‑priority rules.
• If the court endorses Brandon Nursing’s flexible view:
  • Existing arbitration agreements signed by siblings or other lower‑priority relatives are more likely to be upheld.
  • Litigation over authority may focus more on factual disputes (e.g., whether there was actual conflict among potential surrogates) than on priority per se.

Either ruling will directly influence how Mississippi trial courts and the Fifth Circuit handle motions to compel arbitration in similar cases and may indirectly affect settlement dynamics in nursing‑home litigation.

C. For Certification Practice in the Fifth Circuit

Institutionally, Stanford underscores that the Fifth Circuit majority remains comfortable using certification in diversity cases when confronted with unresolved, determinative questions of state law, especially in statutory‑interpretation contexts with no guiding precedent.

At the same time, Judge Oldham’s dissent crystallizes a comprehensive critique of that practice and attempts to reframe the law of certification as an exceptional, not routine, tool. While the dissent does not change the formal standard (the Williamson test remains binding circuit precedent), it may:

• Influence future panels to scrutinize more carefully whether a question is truly “exceptional” before certifying.
• Encourage parties to address not only state‑law ambiguity but also the federalism and Article III concerns associated with certification in their briefing.
• Prompt en banc or even Supreme Court attention to the scope and theoretical basis of certification, especially if intra‑circuit disagreements deepen.

The opinion thus contributes to an ongoing national conversation about the proper relationship between Erie, abstention, certification, and the duty of federal courts to decide state‑law issues in diversity cases.

D. Article III and Advisory‑Opinion Concerns

Although not adopted by the majority, the dissent’s Article III critique raises a non‑frivolous question: to what extent can federal courts incorporate state‑court advisory opinions (in the state’s own constitutional sense) into their judgments without themselves engaging in non‑judicial decision‑making?

Most courts and commentators have considered certification compatible with Article III on the theory that:

• The federal court retains the case or controversy and issues the final judgment.
• The state court’s answer is treated as authoritative exposition of state law, no different in function from how a state supreme court decision in an ordinary case would later inform an Erie analysis.

Judge Oldham, however, questions whether inviting a state court to act in a non‑judicial capacity (where the state constitution permits advisory opinions) is consistent with the federal judiciary’s obligation to exercise only “judicial” power and whether the federal court’s reliance on that advisory answer is distinguishable from other prohibited forms of non‑judicial decision‑making (coin flips, executive vetoes of judgments, etc.).

While Stanford does not resolve this theoretical dispute, it brings to the surface issues that may eventually require clarification from higher authority.

VII. Complex Concepts Simplified

1. What Is a “Surrogate” Under the Health‑Care Decisions Act?

A surrogate is a person authorized by law to make health‑care decisions for an adult who cannot make decisions for themselves and who has not already chosen someone (like through a power of attorney).

Under Mississippi law, when a patient lacks capacity:

1. Doctors first look to see if the patient has an appointed agent or guardian.
2. If not, the law lists family members in order of priority (spouse, adult child, parent, adult sibling) who may step in as surrogate, provided they are “reasonably available.”

The dispute in Stanford is about how strictly that order of priority must be followed.

2. What Is an “Erie Guess”?

An “Erie guess” is a federal court’s best prediction of what a state’s highest court would do when:

• The state’s highest court has not yet addressed a specific legal question; and
• The federal court must apply state law (typically in a diversity case).

The federal court uses legislative text, analogous state decisions, decisions from other states, and other legal materials to make that prediction.

3. What Is Certification?

Certification is a process where a federal court asks a state’s highest court to answer a specific legal question about state law. The federal court:

• Retains the case and ultimate responsibility for judgment.
• Sends a legal question (not the whole case) to the state supreme court.
• Resumes the case after receiving the state court’s answer and applies that answer as authoritative state law.

Certification is intended to reduce guesswork and avoid misinterpreting state law, but it can cause delay and raise institutional questions, as highlighted by the dissent.

4. What Is the Federal Arbitration Act (FAA)?

The FAA is a federal statute that:

• Makes written arbitration agreements generally enforceable.
• Requires courts to treat arbitration agreements like any other contract, not less favorably.
• Allows appeals from orders denying motions to compel arbitration (as in Stanford).

However, whether a valid contract exists in the first place is governed by state contract law.

5. What Is “Diversity Jurisdiction”?

Diversity jurisdiction allows federal courts to hear civil cases between citizens of different states (or between a citizen and a foreign citizen), if the amount in controversy exceeds a statutory threshold. The idea, historically, was to provide a neutral federal forum for disputes crossing state lines.

In diversity cases, federal courts apply state substantive law but federal procedural law.

6. What Is an Advisory Opinion (and Why Does It Matter)?

An advisory opinion is a legal opinion issued by a court that:

• Does not resolve a concrete dispute between parties; and
• Is not binding on the parties as a final judgment.

Under the U.S. Constitution, federal courts cannot issue advisory opinions; they can only decide actual “cases” or “controversies.” Some state constitutions, however, permit their courts to issue advisory opinions to other branches or in response to certification. The dissent argues that this difference creates a tension when federal courts rely on state‑court advisory answers.

VIII. Conclusion

Stanford v. Brandon Nursing is, on its face, a narrow dispute about whether a nursing‑home arbitration agreement is enforceable when signed by an adult brother rather than an adult son under Mississippi’s Health‑Care Decisions Act. Yet the case carries broader significance in at least three respects.

First, it forces Mississippi’s highest court to resolve an important ambiguity in its surrogate‑priority statute—a decision that will shape health‑care consent practices across the state. Second, it continues the close scrutiny of who may validly bind incapacitated nursing‑home residents to arbitration, a recurring and contentious issue at the intersection of elder law, health law, and arbitration doctrine. Third, and perhaps most enduringly at the level of federal judicial process, it showcases a deep internal disagreement within the Fifth Circuit about whether certification is a routine tool for managing state‑law uncertainty or a dangerous departure from federal courts’ duty to decide cases.

The majority, following established Fifth Circuit and Mississippi practice, chooses certification to avoid a blind Erie guess on a statute that Mississippi courts have vowed to interpret strictly. The dissent, invoking history, theory, and constitutional structure, urges a far more restrained approach, reserving certification for cases that threaten serious federalism or constitutional problems.

Until the Mississippi Supreme Court answers the certified question, the enforceability of the arbitration agreement in Stanford remains unresolved. But even at this interlocutory stage, the decision stands as a significant precedent on how the Fifth Circuit navigates the tension between its obligation to apply unsettled state law and its desire to respect state courts’ primary role in authoritatively declaring that law.