Eugene Volokh's Blog, page 11

[Eugene Volokh] Hallucinated Citations Created When Using Generative AI "to Improve the Writing in [a] Brief"

From a declaration in Green Building Initiative, Inc. v. Green Globe Int'l, Inc., a case I wrote about last month (Apparent AI Hallucinations in Filing from Two >500-Lawyer Firms):

In preparing the Reply brief, I performed legal research on Westlaw for authorities supporting arguments set forth in the brief. I included some of those authorities I found on Westlaw into the brief.

In generating the Reply brief, I also used Microsoft's Copilot for its editing functions in an effort to review and improve the draft document by fixing grammar, spelling, and improving badly phrased sentences. To be clear: I did not use Copilot for research nor would I use generative artificial intelligence for legal research since I am aware of generative AI's potential for "hallucination." Because I am concerned about client privacy, I cut and paste only the portions that did not contain any client information from the Word document into Copilot, and then I pasted Copilot's revisions back into the document.

Not by way of excuse, but rather explanation of context, unfortunately, I was in a rush to complete the initial draft of the Reply brief because I was traveling to the east coast  related to a terminal illness in my family, and I failed to pay close enough attention to the details of what I was doing when I was drafting the brief. I entered a prompt into Copilot to instruct it to improve the writing in the brief, and merely expected Copilot to refine my writing; I never expected Copilot to insert any case citations, much less hallucinated ones. As such, I did not carefully review the Reply as revised by Copilot, and therefore, I did not recognize that Copilot inserted two hallucinated citations, especially since Page v. Parsons is an Oregon Court of Appeals decision frequently cited in anti-SLAPP cases. I made a terrible error in not doing so before filing the document….

The lawyer also said that "Other than experimenting with Westlaw's generative artificial intelligence research tool, I have never intentionally used generative artificial intelligence to perform legal research or drafting," because he was "aware of the potential for 'hallucination'" and of his firm's "strict policy against using generative artificial intelligence for this purpose." Indeed, as he notes, "[t]he risks of using AI in the legal profession" "is, perhaps, the most commonly written about and reported issue in the legal field today." As I read his declaration, he just didn't draw the connection between that and what he mentally characterized as AI editing rather than AI drafting.

I of course can't vouch for the accuracy of this, but it seems quite plausible: From all I've seen of AI hallucinations, it seems that hallucinations can appear whether one is using AI to generate text from a prompt or to revise text. So if you're going to use AI to edit, make sure that you do that before the final cite-check and the final substantive proofread—both of which have to be extra thorough and skeptical whenever AI is used as part of the writing or editing process.

UPDATE: I scheduled this post in advance, but now I see that the court issued an order Wednesday saying, "The Court is satisfied with the remedial actions already taken and those proposed to be taken by Plaintiff's counsel and thus will not be imposing any formal sanctions." Those remedial actions included reimbursing the client for fees in connection with the filing that contained the hallucinations, "reimburs[ing] Defendant for attorney's fees reasonably incurred in connection with the citation of hallucinated cases (if any – this was a reply brief and there was no hearing)," continuing to educate attorneys and staffs as to the risks of AI, having the lawyer involved take additional continue legal education on those risks, and donating $5000 to legal aid for the poor in civil cases.

Thanks to commenter Life of Brian for alerting me to the court's order, and for always looking on the bright side of life.

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[Eugene Volokh] Open Thread

[What’s on your mind?]

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[Orin S. Kerr] What is the Jones Property Test, and How Is It Different From Katz?

[The final version of my new article has been published.]

The Washington University Law Review has just published my new article, "The Two Tests of Search Law: What Is the Jones Test, and What Does That Say About Katz?"  Here's the abstract:

Fourth Amendment law has two "search" tests: The Katz privacy test and the Jones property test. Lower courts are not sure what the difference is between them, however, or whether the Jones test is based on trespass law or the mechanics of physical intrusion. The result is a remarkable conceptual uncertainty in Fourth Amendment law. Every lower court recites that there are two search tests, but no one knows what one test means or how it relates to the other.

This Article argues that the Jones test hinges on physical intrusion, not trespass law. Jones claimed to restore a pre-Katz search test, and a close look at litigation both before Katz and after Jones shows an unbroken line adopting an intrusion standard and (where it has arisen) rejecting a trespass standard. This understanding of Jones is not only historically correct, but also normatively important. How we understand Jones tells us how to understand Katz. The intrusion approach offers an accurate interpretation of both tests that shows the continuing importance of Katz.

I had a lot of fun nerding out on the often-forgotten case of Silverman v. United States (1961) when researching this article.  Silverman is all but ignored these days, but I think it shouldn't be: You can't understand what Katz did in 1967, or what Jones did in 2012 in returning to pre-Katz law, without understanding what Silverman did (and didn't do) in 1961. Once you understand Silverman, what happened later fairly neatly falls into place, I think.

 

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[Eugene Volokh] End Times for Lawsuit Against End Times Preacher

From the Complaint in Diver v. Cote, which alleged intentional and negligent infliction of emotional distress, fraudulent misrepresentation, and an unfair and deceptive trade practice:

The Defendants produce and distribute religious content focused on eschatology, pre-tribulation rapture, and speculative end-times predictions. The Defendants' content includes repeated fear-based messages, such as:

"Jesus is coming. The rapture is coming soon.""You do not want to experience standing before the Lord of the universe naked in your sin, apart from Jesus Christ."

The Defendants repeatedly emphasize 2025-2026 as a likely timeline for the rapture, fostering obsessive thought patterns and undue distress in vulnerable viewers.

The messaging in Defendants' videos induces psychological distress, anxiety, and religious trauma among susceptible individuals. The Defendants frame those who question their theology as "deceived", which promotes social isolation and cognitive rigidity for their followers. The Defendants have monetized their content through YouTube advertising, donations, and merchandise sales, potentially violating consumer protection laws if the financial solicitations are based on misleading claims.

As a direct result of the Defendants' content and messaging, the Plaintiff has suffered:

Severe emotional distress.Anxiety and mental anguish.Disruption to personal and professional life.

No dice, Connecticut Superior Court Judge Trial Referee Joseph Shortall concluded, granting a motion to dismiss under Connecticut's anti-SLAPP statute:

The court has carefully examined the arguments made in support of the defendants' motions. The court finds that they have shown by a preponderance of the evidence that the complaints in both actions are based on the exercise of their right of free speech on matters of public concern [as required for the anti-SLAPP statute to apply], that is, issues related to health, community well-being and a public figure; namely, Jesus Christ. The defendants' speech was made in a public forum; namely, You Tube and websites open to the public, as required by [the statute].

Once there is a finding that a lawsuit is " in a public forum on a matter of public concern," the Connecticut statute requires that the plaintiff "set forth with particularity the circumstances giving rise to the complaint … and demonstrate to the court that there is probable cause, considering all valid defenses, that [he] will prevail on the merits of the complaints." But plaintiff, who is representing himself, failed to appear to present his argument on that, so the case was dismissed.

Mario Cerame (Aeton Law Partners LLP) represents defendants.

 

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[Eugene Volokh] Reminder: AI Might Have Hallucinated Quotations Even if You've Confirmed the Citations

["Lead counsel reviewed the cited cases in LexisNexis and confirmed that they were actual decisions relevant to the legal issues in this matter. However, the quotations included in the initial draft of the Memorandum were not independently verified against the official opinions word-for-word."]

From a Response to an Order to Show Cause in Pennantia, LLC v. Rose Cay Maritime, LLC (S.D.N.Y.), filed by lawyers from a 10-lawyer firm:

[I.] Introduction and Acknowledgment of Responsibility

Undersigned counsel acknowledge the Court's concerns and accept full responsibility for the errors identified in Defendant's opposition Memorandum of Law (ECF No. 32)("Memorandum"). Specifically, the Memorandum included quotations that had not been confirmed against the cited judicial opinions prior to filing. Counsel recognize that this was a serious lapse in professional obligations under Park v. Kim, 91 F.4th 610 (2d Cir. 2024), deeply regret the error, and extend their sincere apologies to the Court, the parties, and opposing counsel.

[II.] Explanation of Circumstances

Lead counsel reviewed the cited cases in LexisNexis and confirmed that they were actual decisions relevant to the legal issues in this matter. However, the quotations included in the initial draft of the Memorandum were not independently verified against the official opinions word-for-word.

The error occurred during preparation of the Memorandum under a compressed briefing schedule in response to Plaintiff's application for a temporary restraining order and preliminary injunction. On July 28, 2025, undersigned lead counsel used a generative artificial intelligence program to generate an initial outline addressing, among other issues, whether interest may be included in the value of a maritime lien. The draft outline contained citations to authorities, … together with purported quotations attributed to those cases. Counsel confirmed through Lexis Nexis that the cases were valid and relevant to maritime lien law, but failed to verify the accuracy of the quoted language against the official opinions.

Undersigned lead counsel departed for a previously scheduled vacation on August 2. Between July 28 and August 4, the Memorandum underwent more than eleven rounds of revisions; however, during that process the accuracy of the quotations initially generated by the AI program was never verified. Importantly, the Memorandum also cited other authorities … that supported the proposition at issue. The inclusion of the fictitious quotations was inadvertent and occurred without any purpose or intent to mislead the Court or opposing counsel.

Undersigned counsel emphasize that there was never any intent to mislead the Court or opposing counsel. The AI program was used solely as a time-saving aid in the initial drafting process. The subsequent failure to confirm the quotations was inadvertent, yet it constituted a breach of professional responsibility. Undersigned counsel fully recognize that the duty to verify authority rests squarely with the attorney in all circumstances.

[III.] Corrective Measures Implemented

Since the Court's August 26, 2025 Order, Lennon Murphy & Phillips LLC has taken immediate and concrete steps to ensure that this type of error does not recur:

[1.] Conducted a manual review of all citations and quotations contained in Dove Cay's submissions before this Honorable Court that resulted in the redline of Dove Cay's Memorandum of Law (ECF No. 57-1).

[2.] All citations and quotations in any filing must now be verified directly against official sources (Lexis, Westlaw, or court websites). Attorneys must certify this verification before submission.

[3.] The firm will implement training for all attorneys regarding the proper and ethical use of generative artificial intelligence in the practice of law, with particular emphasis on Rule 11 obligations.

[4.] AI-generated text may only be used as an internal drafting aid, and only after complete, manual verification of all authorities, quotations, or other statements by the responsible attorney.

These safeguards are designed to eliminate the risk of inaccurate citations in future submissions.

The filing goes on to argue that sanctions shouldn't be imposed, partly because "the cases cited here … are genuine, published decisions, relevant to maritime lien jurisprudence," and "[t]he error was confined to two fictitious quotations generated by an artificial intelligence tool and mistakenly attributed to genuine cases during an expedited initial drafting process." And the court (Judge Sidney Stein) agreed, in a Sept. 26 order:

In light of counsel's acknowledgment of the fact that the quotations at issue were not independently verified against the actual opinions and acceptance of responsibility and the remedial measures subsequently put in place to avoid a repetition of the errors, the Court will take no further action on this matter at this time.

I think the filing made as good a case as possible for not imposing sanctions, in part because of what struck me as its candid, regretful, and professional tone.

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[Josh Blackman] Today in Supreme Court History: November 13, 1856

11/13/1856: Justice Louis Brandeis's birthday.

Justice Louis Brandeis

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[Eugene Volokh] Open Thread

[What’s on your mind?]

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[Ilya Somin] The Alien Enemies Act and the Major Questions Doctrine

[The Trump administration's claims that illegal migration and drug smuggling qualify as an "invasion" or a "predatory incursion" under the Alien Enemies Act go against the major questions doctrine.]

A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

Since Donald Trump invoked the Alien Enemies Act of 1798 (AEA) as a tool for peacetime detention and deportation in March of this year, there has been extensive litigation over the legality of that action. The AEA allows detention and deportation of non-citizens from relevant countries (including legal immigrants) "[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." Trump has tried to use the AEA to deport Venezuelans the administration claims are members of the Tren de Aragua (TdA) drug gang.

Multiple federal district courts and the US Court of Appeals for the Fifth Circuit, have ruled that Trump's actions are illegal because illegal migration and drug smuggling of the kind TdA engages in do not qualify as a war, invasion, or predatory incursion. I think overwhelming evidence supports these conclusions, evidence I document in detail in my new article "Immigration is Not Invasion." But litigation continues. The Fifth Circuit is going to rehear its decision en banc (before all 17 active judges of that court), and one district court has (incorrectly) ruled that TdA's actions qualify as a "predatory incursion."

In all the litigation and commentary on this issue up to now, one important issue seems to have been overlooked (including by me!): whether Trump's interpretation of the AEA is barred by the "major questions doctrine" (MQD). I only became aware of it when one of my fall semester Constitutional Law I students - David Koster - raised the possibility. What follows is my own take on the issue, and is solely my responsibility. But David deserves  the credit for coming up with the idea in the first place.

The major questions doctrine requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." If the statute isn't clear, courts must reject the executive's assertion of power.

The sweeping authority Trump claims under the AEA seems major enough to qualify as a matter of "vast economic and political significance." If the AEA can be used to deport migrants from any country that is a source of illegal migrants or cross-border drug smuggling, many millions of immigrants (including many legal ones) could potentially be subject to detention and deportation at any time the executive chooses. For example, the single largest immigrant population in the US is that from Mexico, a total of about 11.4 million people. Mexico is obviously a source of both drug smuggling and illegal migrants. The same is true of most other countries with large immigrant populations in the US, such as Cuba and the nations of Central America. If illegal migration and drug smuggling qualify as "invasions" or "predatory incursions," we are under constant invasion (or predatory incursion) from dozens of countries around the world!

To be sure, the AEA also requires that the invasion or predatory incursion be perpetrated by a "foreign nation or government." But if the tenuous ties (assessed as very weak by the Trump Administration's own intelligence agencies) between the Venezuelan government and TdA are enough to qualify, similar claims can be made about the government of virtually any other nation with a large immigrant population in this country. Mexican officials, for example, likely have at least some ties to drug smugglers. The same is likely true of government officials in various Central American nations, and elsewhere.

The power to detain and deport millions of migrants (including legal ones) at any time, and with little due process is one with obviously vast economic and political effects. Not just on migrants themselves, but on American citizens who have family, business, and other connections with these immigrants. If the authority is used on any significant scale, it would also seriously damage the US economy.

A key factor the Supreme Court uses in assessing major questions cases is whether the executive's claim to authority under the relevant statute is "unprecedented." Here, it very obviously is. The AEA has been around for 227 years. And in all that time, it has previously invoked on only three occasions: the War of 1812, World War I, and World War II - all major wars against foreign governments. There is zero precedent for its use to counter anything like illegal migration or drug smuggling. As discussed more fully in my article, there is also no evidence that the framers of the law ever contemplated its use for such purposes.

If MQD does apply here, it provides a strong additional justification for rejecting the administration's position. As explained in detail in my article, and the Fifth Circuit amicus brief I coauthored on behalf of the Brennan Center, the Cato Institute, and others, textual and historical evidence overwhelmingly demonstrates that "invasion" and "predatory incursion" refer to military attacks. At the very least, it is far from clear that they encompass illegal migration or drug smuggling. And if things are unclear, MQD requires courts to rule against the executive's assertion that it has been delegated a vast power.

The Trump Administration could argue that the major questions doctrine doesn't apply to delegations of power to the president, as opposed to delegations to agencies. But that's an extremely weak argument that has been rejected by multiple courts of appeals.

The Administration could also argue that major questions doctrine doesn't apply to "foreign affairs" delegations. The Supreme Court has never adopted any such exception. And several previous uses of the major questions doctrine have applied to policies with significant foreign policy effects. For example, in West Virginia v. EPA, the Court used major questions doctrine to strike down a Biden policy addressing climate change; climate change is obviously an issue with vast foreign policy significance. In Biden v. Nebraska, the student loan case, the Court applied the doctrine to strike down Biden's massive student loan forgiveness program. They did so despite the fact that  Biden claimed the authority in question comes from the HEROES Act, legislation whose original purpose was in large part to provide loan forgiveness to members of the military serving abroad during wars and other conflicts (they are the "heroes" from whom the act gets its name).

Moreover, mass detention and deportation of migrants is far from a pure foreign affairs issue. Its most immediate effect is on migrants living in the United States, many of whom have been here for years and are integrated into our economy or society. It also has vast effects on American citizens. Invocations of the AEA obviously do have some impact on foreign affairs. But the same is true of many, perhaps most, major domestic policies. That doesn't mean such policies are exempt from MQD scrutiny.

Another issue that might arise here is the claim that the AEA is not a true delegation because the president has inherent authority over immigration. The Constitution doesn't specify which branch of government has the power to restrict migration (probably because the federal government was not originally understood to have that power at all). But the Supreme Court has repeatedly held that this power is a legislative authority, going all the way back to the Chinese Exclusion Case of 1889, the first decision holding that the federal government has a general power to restrict migration, and in the process also ruled that the authority belongs to "the legislative department." Holding that the president has his own authority to restrict migration would also upend the extensive system of immigration laws enacted by Congress over the last century and more, potentially empowering the president to just sweep it aside, at will.

In sum, the major questions doctrine clearly applies to the Trump Administration's assertion of power under the Alien Enemies Act. And if there is any ambiguity about whether the AEA gives the executive the sweeping power it claims, MQD requires a ruling against the government.

As noted above, I think courts can and should rule against the administration based on the text and history of the law alone, and several already have. But if judges conclude the AEA is unclear, the major questions doctrine requires resolving that ambiguity against the administration.

For those keeping score, I said much the same thing about the use of the MQD in various Biden-era cases, including loan forgiveness, the eviction moratorium case, and the vaccine mandate case. I have argued that MQD is an important tool for curbing  executive power grabs under both Democratic and Republican administrations. If necessary, it should be used here, too.

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[Eugene Volokh] "Gay Quotas"

A new article by Prof. Sheldon Bernard Lyke; the abstract:

In an era where diversity often takes center stage, the conversation
around true equality for vulnerable minorities remains pressing. This essay
explores the concept of implementing gay quotas as a pathway to not only
increasing representation but also redefining the legal framework for
equality. The implementation of quotas for lesbian, gay, and bisexual (LGB)
individuals presents an opportunity to address disparities within educational
institutions and workplaces directly. By setting a standard for inclusion,
these quotas could help ensure that sexual minorities have equitable access
to opportunities, ultimately fostering a more diverse and inclusive
environment. Moreover, the legal challenges arising from such policies
could prompt courts to establish more explicit standards for equal protection
related to sexual orientation, creating lasting change.

This essay critiques the current political strategies and Supreme Court
decisions that have led to a muddled landscape for equality, particularly for
sexual orientation. It argues that the focus on diversity as a means of
inclusion has distracted from true equality, especially in the context of race
and sexual orientation. The Supreme Court's inconsistent application of
equal protection principles in cases involving sexual orientation has led to
unclear legal standards. This essay also discusses ongoing discrimination
and harassment faced by LGB individuals in the workplace. Implementing
LGB quotas could push courts to clarify their stance on equal protection for
sexual orientation, thereby setting important legal precedents.

I don't support such proposals, but I thought it was worth noting. For an example of an attempt to implement preferences for "LGBTQIA" in a guaranteed minimum income pilot project in West Hollywood, see this post.

I was also curious about a subject that the article doesn't seem to touch on, which is how the program administrators would determine who is gay, lesbian, or bisexual; I therefore e-mailed Prof. Lyke, asking,

If such a quota is instituted, how can an institution determine whether someone is indeed eligible? Say, for instance, that an applicant says that she is bisexual, because she has been attracted both to men and to women. To be sure, she may publicly appear to be heterosexual—she may be married to a man, for instance—but I take it that this is entirely consistent with bisexuality. Would she have to certify (perhaps under penalty of perjury?) that she is in fact in some measure attracted to women?  Would she have to certify that she has in the past had some sort of sexual contact with women?

I appreciate that this problem has already arisen with regard to various race-based programs, where it has indeed led to high-profile controversies. But it just seems at first glance like it would be more serious with regard to sexual orientation, given that it's so hard for an outsider to know for certain what someone's sexual orientation is (especially whether that orientation is bisexuality).

He was kind enough to respond:

Thank you for reading Gay Quotas and for raising such a thought-provoking and reader-likely question—how, exactly, an institution could determine whether an individual is eligible for inclusion under a sexual-orientation-based quota. I appreciate your engagement because this question highlights the profound tension between identity, proof, and equality that my thought experiment aims to expose.

First, I am not persuaded that this is a serious administrative or conceptual problem. Concerns about "box checking"—that people will falsely claim a minority status to gain an advantage—are frequent but may be overstated. The empirical record in the racial context does not bear out the fear. Claims about people falsely identifying as Native American to obtain benefits, for example, have been both rare and methodologically contested. These worries often resemble the "voter fraud" narrative in elections: rhetorically powerful, but largely unsubstantiated. The anxiety itself often does more ideological work than the underlying conduct it purports to describe.

Second, if we take sexual orientation seriously as a protected identity, the most consistent approach is auto-identification, or self-identification. I draw here on comparative lessons from Brazil's Supreme Federal Court decision in ADPF 186, which upheld race-conscious quotas in higher education. The Brazilian court recognized two possible methods of classification: autoidentificação (self-identification) and heteroidentificação (identification by others). It held that either or both could be employed so long as the process respected personal dignity and avoided reinforcing stereotypes. (See Sheldon Bernard Lyke, Is Resistance to Foreign Law Rooted in Racism?, 109 Nw. U. L. Rev. Online 41, 52–53 (2014)).

This framework is practical precisely because it recognizes that identity has both an internal and external dimension. For sexual orientation, self-identification is even more essential than for race: it is not phenotypic, not reliably legible, and not necessarily expressed through behavior. Someone may experience same-sex attraction without ever acting upon it, and that desire alone may meaningfully situate them within a sexual minority. Hetero-identification might have limited use—for instance, in understanding how discrimination operates through perception—but as a criterion for quota eligibility, it would be intrusive and normatively suspect.

Third, I would not favor any system requiring individuals to certify their sexual orientation "under penalty of perjury." Law already recognizes and accommodates socially constructed identities that cannot be empirically verified—such as religion, gender, and even political beliefs. In our current understanding of gender, for example, we do not demand documentary proof to affirm someone's womanhood or manhood. As Catharine MacKinnon has argued, if a person seeks to inhabit a marginalized identity, the claim itself carries political meaning and should not be policed through external verification.

In short, a certain degree of indeterminacy is not a flaw but a reflection of social reality. The alternative—state-administered validation of intimate identity—would raise far greater concerns about privacy, equality, and dignity.

The project of Gay Quotas is not to design an apparatus to verify desire, but to test whether our constitutional and cultural commitments to equality can extend to sexual orientation in the same way they have—albeit imperfectly—to race and gender. The administrative discomfort you note is itself revealing: it shows how the law still struggles with identities that are socially constructed and internally known. The real question is not whether we can "prove" who is gay, but whether the state can recognize the structural inequality that sexual minorities face and act affirmatively to correct it.

I welcome any further exchange or questions, and sincerely appreciate you taking the time to read my work.

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[Eugene Volokh] Federal Appellate Judges Can Petition the Supreme Court to Review a Question

Litigants often file "petitions for certiorari" asking the U.S. Supreme Court to review a case, or particular questions within the case. The overwhelming number of cases that reach the Court through such petitions. And occasionally one hears someone joking that a concurring or dissenting opinion in a court of appeals decision is the judge's own petition for certiorari: What that means is that the judge is pointing out that the court of appeals' rule is either incorrect or in conflict with other courts', and is hoping that when the losing litigant petitions for certiorari, the Court will read that dissent and perhaps be encouraged to grant the petition and review the case.

But it turns out that federal appellate judges (as few as a two-judge majority on a court of appeals panel) can themselves ask the Supreme Court to review a question, though technically the procedure is called a "certification" rather than a petition. Here's the federal statute, 28 U.S.C. § 1254:

Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;

(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

Supreme Court Rule 19 further elaborates on this.

To be sure, in practice the Court almost never agrees to hear such certified questions; the last time it did that was in 1981, in Iran National Airlines Corp. v. Marschalk Co. Inc. Here's a 2009 opinion (U.S. v. Seale) in which Justices Stevens and Scalia urged the Court to accepted a certification, but unsuccessfully:

Statement of Justice Stevens, with whom Justice Scalia joins, respecting the dismissal of the certified question.

This certificate presents us with a pure question of law that may well determine the outcome of a number of cases of ugly racial violence remaining from the 1960s. The question is what statute of limitations applies to a prosecution under 18 U. S. C. §1201 commenced in 2007 for a kidnaping offense that occurred in 1964.

James Ford Seale was found guilty of violating §1201, a provision that does not include its own limitations period. Title 18 U. S. C. §3281 provides that "any offense punishable by death" may be prosecuted "at any time without limitation," whereas §3282(a) imposes a 5-year period of limitations for all other offenses "[e]xcept as otherwise expressly provided by law." In 1964 a violation of §1201 was a capital offense when the victim was harmed, and since 1994 a violation of §1201 has been a capital offense when the kidnaping results in the loss of life. But for more than two decades in between, Seale's crime was not punishable by death.

Several developments accounted for this. In 1968 this Court held that the death penalty provision in the old §1201 was unconstitutional because it applied "only to those defendants who assert the right to contest their guilt before a jury," United States v. Jackson, 390 U. S. 570, 581, and in 1972 we cast significant doubt on the constitutionality of death penalty laws nationwide, Furman v. Georgia, 408 U. S. 238 (per curiam). Following Furman, Congress repealed the death penalty clause of §1201, see Act for the Protection of Foreign Officials and Official Guests of the United States, Pub. L. 92-539, §201, 86 Stat. 1072, which had the effect of changing the applicable statute of limitations from §3281 to §3282.

In this case, the District Court held that the 1972 repeal did not retroactively change the character of a violation of §1201 as a capital offense within the meaning of §3281—and therefore that the prosecution of Seale could go forward—but a panel of the Court of Appeals reversed. 542 F. 3d 1033 (CA5 2008). In response to the Government's petition for rehearing en banc, the full court vacated the panel decision and, by an equally divided 9-to-9 vote, affirmed the District Court's ruling on the limitations defense. 570 F. 3d 650 (CA5 2009) (per curiam); see also id., at 651 (DeMoss, J., dissenting) (noting the affirmance's "nominal" nature in light of the deadlock). Following the procedure authorized by Congress in 28 U. S. C. §1254(2) and by this Court's Rule 19, a majority of the members of the en banc court voted to certify this question of law to us for decision.

The question is narrow, debatable, and important. I recognize that the question reaches us in an interlocutory posture, as Seale appealed his conviction on numerous grounds, and that "[i]t is primarily the task of a Court of Appeals to reconcile its internal difficulties," Wisniewski v. United States, 353 U. S. 901, 902 (1957) (per curiam). Yet I see no benefit and significant cost to postponing the question's resolution. A prompt answer from this Court will expedite the termination of this litigation and determine whether other similar cases may be prosecuted. In these unusual circumstances, certification can serve the interests not only of legal clarity but also of prosecutorial economy and "the proper administration and expedition of judicial business." Ibid.

The certification process has all but disappeared in recent decades. The Court has accepted only a handful of certified cases since the 1940s and none since 1981; it is a newsworthy event these days when a lower court even tries for certification. Section 1254(2) and this Court's Rule 19 remain part of our law because the certification process serves a valuable, if limited, function. We ought to avail ourselves of it in an appropriate case. In my judgment, this case should be briefed and set for argument.

And from a recent article by Prof. Ben Johnson:

Interestingly, the statutory language regarding certification is also clearly mandatory. See Felix Frankfurter & James M. Landis, The Business of the Supreme Court at October Term, 1929, 44 Harv. L. Rev. 1, 35 (1930) ("Petitions for certiorari the Court can deny, but questions certified must be answered." (emphasis omitted)); James William Moore & Allan D. Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 Va. L. Rev. 1, 3 (1949) ("Congress determines what courts may use certification and when, but within these limits the certifying court determines on what matters the reviewing court must pass. In other words the jurisdiction of the latter court is obligatory at the option of the certifying court."); Amanda L. Tyler, Setting the Supreme Court's Agenda: Is There a Place for Certification?, 78 Geo. Wash. L. Rev. 1310, 1321, 1323-24 (2010).

Yet the Court has effectively ignored this obligation. It has not accepted a certified question since 1981. See Iran Nat'l Airlines Corp. v. Marschalk Co., 453 U.S. 919 (1981) (mem.); United States v. Seale, 558 U.S. 985, 986 (2009) (statement of Stevens, J., respecting dismissal of certified question) (noting that the Court had accepted no certified cases since 1981). The leading Supreme Court treatise reports that the Justices only answered four certified questions from 1946 to 2017. Shapiro et al., supra note 179, at ch. 9, § 1. My research has found four additional cases, bringing the total to a still abysmally low eight. The four Shapiro and his coauthors include are United States v. Rice, 327 U.S. 742 (1946); United States v. Barnett, 376 U.S. 681 (1964); Moody v. Albemarle Paper Co., 417 U.S. 622 (1974); and Iran National Airlines Corp., 453 U.S. 919. To these I would add American Stevedores, Inc. v. Porello, 330 U.S. 446 (1947); Shade v. Downing, 333 U.S. 586 (1948); Woods v. Hills, 334 U.S. 210 (1948); and Alison v. United States, 344 U.S. 167 (1952).

Given the Court's unwillingness over the last 44 years to accept such certified questions, I expect that few lower court judges would even be inclined to try. On the other hand, there are new Justices now, and new lower court judges, so who knows?

UPDATE: See also Prof. Aaron Nielson's The Death of the Supreme Court's Certified Question Jurisdiction. An excerpt:

The question, then, is not whether certification is dead, but why it is dead. Or, rather, who killed it? The Supreme Court did, although not without its accomplice, the courts of appeals. Certification's premise, allowing, as it does, an appellate court in its discretion to ask the Court to answer a question, is inconsistent with the Court's conception of itself. As Professors Frankfurter and Landis noted many years ago, "the Supreme Court [is] hostil[e] to a procedure by which the Court may be called upon to make rulings without the benefit of a decision below." Similarly, Moore and Vestal explained that the Court questioned certification due to its "fear that an extensive use of certification would unduly enlarge its obligatory jurisdiction," thereby "frustrat[ing] the Court's proper functioning as a policy-determining body …."

The murder weapon has been passive aggression. As Moore and Vestal observed, although "the Court supposedly has no discretion in certifications, which invoke its obligatory jurisdiction, pragmatically it is able to control the employment of the procedure." In particular, by means of "[c]urt per curiam dismissals," the Court successfully discouraged certification: "[w]henever the Supreme Court … dismissed a certificate from a lower court, that court … usually refrained from certifying for a number of years." Indeed, in Wisniewski v. United States in 1957, the Court—contrary to the statutory text —went so far as to dismiss with a one-page per curiam a certified question on the grounds that the Court's jurisdiction is too "exceptional" to merit resolving a mere intra-circuit split. The Court decreed that

[i]t is … the task of a Court of Appeals to decide all properly presented cases coming before it, except in the rare instances, as for example the pendency of another case before this Court raising the same issue, when certification may be advisable in the proper administration and expedition of judicial business.

The judges of the courts of appeal got the message. As one appellate judge succinctly put it: "[t]he attitude of the Supreme Court has not encouraged the use of this technique …."

The courts of appeals, however, have been complicit. Perhaps driven by the Court's hostility to the certification procedure, appellate courts have almost completely stopped certifying questions, and some have even embraced the Court's point of view. For example, in a per curiam joined by no less than Chief Judge Learned Hand, the Second Circuit explained that it would only certify a question if "no petition for certiorari is available to the aggrieved party." Laying history and congressional will aside, the panel explained: "we can see no reason for imposing an appeal upon the Supreme Court, which it does not choose to take of its own motion," because "[i]t is not for us to decide what matters are of enough importance to require decision by that court; the control of its docket should rest exclusively in its own hands." The Supreme Court's animosity, mingled with this attitude of some appellate courts, has slowed the use of certified questions to the point where it is unclear how many judges today even know this option exists—which, given Seale, is probably just as well.

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