THE CONSTITUTIONAL RIGHT TO A REMEDY

Chief Justice Tom Phillips[1]

The American Bill of Rights, to which United States Supreme Court Justice William J. Brennan was so devoted, is one of the supreme achievements of the human spirit. In ten concise paragraphs, it encapsulates most of the basic rights and freedoms that most of the world now regards as the basis of individual liberty and human dignity.[2] But Justice Brennan, for one, never forgot that every American had even more protection from government oppression. Ever mindful of his roots as a state judge (with stints on the New Jersey trial, appellate and supreme court benches ), he urged the bench and bar to rely on state bills of rights as well as the federal one.[3] He recognized that

state constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law — for without it, the full realization of our liberties cannot be guaranteed.[4]

Most state bills of rights are longer than the first ten amendments, and thus they contain rights and guarantees not found in the federal constitution. The most widespread and important of these unique state provisions is probably the guarantee of a right of access to the courts to obtain a remedy for injury. It is one of the oldest of Anglo-American rights, rooted in Magna Carta[5] and nourished in the English struggle for individual liberty and conscience rights.[6] Today, it expressly or implicitly appears in forty state constitutions.[7]

While there are thirty-two different versions[8] among the forty states, there are two major variants. Ten states use language devised in the seventeenth century by Sir Edward Coke.[9] Their constitutions provide something like this:

That every person for every injury done him in his goods, land or person, ought to have remedy by the course of the law of the land and ought to have justice and right for the injury done to him freely without sale, fully without any denial, and speedily without delay, according to the law of the land.

Twenty-eight states use a more compact form,[10] reading something like this:

That all courts shall be open, and every person, for an injury done him in his person, property or reputation, shall have remedy by the due course of the law.

Today, these traditional words are invoked to challenge procedural impediments to judicial access or to block substantive modifications to established causes of action or remedies. In the last quarter century alone, state supreme courts have relied on the right to a remedy to strike down laws that lacked discovery rule exceptions to a time bar on bringing suit,[11] allowed limitations to run against minor plaintiffs,[12] or interposed terms of repose on claims against architects and builders,[13] engineers,[14] suppliers[15] and manufacturers.[16] Repose statutes have also been invalidated that limited the time to bring certain types of claims, such as workers’ compensation[17] or hazardous material exposure.[18] Courts have also struck down laws that granted sovereign immunity to municipalities for proprietary functions,[19] permitted defamers to retract and avoid liability,[20] and prevented guests from suing automobile drivers for ordinary negligence.[21] In the medical malpractice area, courts have knocked down statutes capping non-economic damages for medical malpractice victims[22] and requiring medical malpractice claims to be screened by experts before filing.[23] Finally, courts have used the provision to open judicial proceedings to the public,[24] including juvenile hearings,[25] to forbid using filing fees for general state revenue,[26] and to proscribe the payment of penalties or fines as a condition for challenging them in court.[27]

These holdings demonstrate the significance of the remedy guarantee. But they do not establish the parameters of its application, because during the same quarter century, other courts in other jurisdictions (or sometimes even the same courts in the same jurisdiction) have upheld each of these types of laws against a remedies challenge.[28] As one judge has aptly concluded: “In some states, [the right to a remedy] is second only to the due process clause in importance; while in other states, it is little more than an interesting historical relic.”[29]

These disparate results are essentially inexplicable. They cannot be harmonized by reliance on textual distinctions among the states. There is no correlation between the words of a particular guarantee and how expansively the courts of that state have applied it.[30] Nor can these different outcomes be explained by historical, social, political or cultural variations between the states.[31] In each section of the country, whether the constitution is old or new, the judges elected or appointed, or the political culture traditional or progressive, some state courts defer unhesitatingly to legislative choices, while others routinely strike down any statutes that impede access to the courts or impair recovery under traditional theories.[32] Finally, these distinctions cannot be explained by divergent intentions among the particular framers and ratifiers of the individual state constitutions. In most states, there is almost no historical record to explain what the framers and ratifiers thought the provision would accomplish.[33] More often than not, such provisions were adopted without a word of debate or a dissenting vote,[34] while in many others there was but a cursory modification before approval.[35] The occasional nugget in the framers’ debate[36] or in complementary constitutional provisions[37] is definitely the exception, not the rule.

An obvious explanation for such disparities is the absence of a corresponding guarantee in the United States Constitution. Not only do states lack the benefit of federal interpretation, but they also lack the intensive scholarship and focused public debate that has helped develop and refine our federal rights. To be sure, more treatises and law journals are addressing the right to a remedy than ever before, and that is all to the good. But like the dog’s bark in the Sherlock Holmes story “The Adventure of Silver Blaze” by Arthur Conan Doyle, the real significance is what is not there. There are no right to a remedy chairs at any law school. No interest groups solicit funds to support or oppose a wider acceptance of their favored interpretation of the provision. I have never located a legal symposium devoted to the guarantee, or even a journal article followed by replies or comments. I suspect that no one has ever been tenured at an accredited law school based on remedies research. The states can’t even agree on nomenclature: I have found eight different names for the guarantee in cases and convention debates.[38] The American legal community would never have ignored a federal constitutional right of even remotely comparable importance.

Since that the United States Supreme Court is unlikely to recognize a remedy guarantee within federal due process,[39] it seems that state litigants and state courts are on their own. In my view, state courts should welcome this opportunity. If we are truly worthy of Justice Brennan’s confidence in state courts as equal partners in defining basic rights and responsibilities, then the bench and bar should be able to make the right to a remedy more than a wild card in the creative litigator’s deck. If we can’t tell precisely why the framers in Texas included this clause while those in New York did not, we can nevertheless discover why English reformers created the guarantee, why American patriots preserved it, and how its purpose can be fulfilled today. Within each jurisdiction, the courts should articulate a sufficiently coherent doctrine to allow for the guarantee to be applied consistently and predictably. If two states develop divergent doctrines, each state’s courts should be able to say why: either one state is right and the other wrong, or some legitimate distinction permits both states to be right.

If state courts are equal to this task, then independent state constitutional jurisprudence is on solid grounds. If in interpreting other constitutional guarantees, such courts happen to differ with federal precedent about corresponding rights, such divergence is defensible and perhaps desirable. But if state courts cannot make any sense out of their most important unique guarantee, then maybe a “lockstep” approach is the most practical, if not the most principled, method of interpreting those rights found in both state and federal constitutions.

I. Origins of the Right to a Remedy

To understand the right to a remedy, most states look first to the guarantee’s origin and development in England. Judges have long been impressed by its pedigree, dating from 1215 and the Great Charter on the field at Runnymede and confirmed in 1225 as Chapter 29 of the “final version” of Magna Carta.[40] But the modern significance of the right to a remedy began in 1641, when Sir Edward Coke’s Second Part of the Institutes of the Laws of England was posthumously published.[41] Coke described Chapter 29 of Magna Carta as a “roote” from which “many fruitfull branches of the law of England have sprung.”[42] One such branch was the protection of individuals’ rights from official acts of oppression, the precursor to modern due process. Coke then moved to “the rights of subjects in their private relations with one another,”[43] where he gave this gloss on Magna Carta:

[E]very Subject of this Realm, for Injury done to him in goods, lands, or person, by any other Subject, Ecclesiastical or Temporal whatever he be, without exception, may take his remedy by the Course of the Law, and have Justice and Right for the injury done him, freely without Sale, fully without any denyal, and speedily without delay; for Justice must have three Qualities: it must be . . . free; for nothing is more odious than Justice [let] to sale; . . . full, for justice ought not to limp, or be granted piece-meal, and . . . speedily: Delay is a kind of Denyal: And when all these meet, it is both Justice and Right.[44]

Much of this language survives intact as the remedies guarantees of some states.[45]

During the next century, Sir William Blackstone described the right to a remedy as one of the critical means through which a civilized society served its principal aim _ the preservation of an individual’s absolute rights to life, liberty, and property.[46] In his Commentaries on the Laws of England,[47] first published in Oxford between 1765 and 1769, Blackstone divided the rights of persons into two categories. The three absolute rights of personal security, personal liberty, and property existed in a state of nature.[48] Other rights were merely relative, arising only because men live in society and have relationships with other people.[49] Absolute rights could not be protected simply by declaratory law; individuals required means of vindicating them.

But in vain would these [absolute] rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.[50]

The right to a remedy was one of the five subordinate rights through which society vindicated its primary task of protecting the absolute rights of men,[51] and it encompassed both the substance of the law and the procedures through which courts applied that law.[52] Thus, once a person was injured, the right to an “adequate remedy” immediately attached, though judicial process might be necessary to ascertain the exact parameters of that right.[53] The right to a remedy dictated that common law courts must be courts of general jurisdiction, open to hear any and all cases involving injury to individual rights, “[f]or it is a settled and invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury its proper redress.”[54] Thus when Blackstone quoted Coke’s dictum that justice be granted fully and without delay, he was concerned not merely with the physical availability of judicial process, but with the substantive opportunity to assert claims to protect absolute rights.[55]

Coke nor Blackstone would have empowered judicial officers to protect rights against all government intrusion. In their time, no one accorded “power” to the courts to strike down a legislative action, Bonham’s case (whatever it means) notwithstanding.[56] As Blackstone stated:

[Parliament] being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy.[57]

Thus Blackstone clearly saw the remedies guarantee only as a check on royal abuse of power, not parliamentary excess.

Unlike Coke and Blackstone, the revolting American colonists saw both Crown and Parliament as oppressors.[58] Parliamentary initiatives during the 1760s and 1770s convinced the colonists that the informal constitution securing English rights against royal infringement was inadequate protection against all possibilities of government oppression. When independence was declared, some of the new American states began adopting formal written constitutions to give structure to their new governments and to give added security to the most fundamental rights. As Gordon Wood notes, they recognized that laws protecting their basic freedoms must be of “a nature more sacred than those which established a turnpike road.”^[1]

By the end of 1776, two states had adopted constitutions guaranteeing the right to a remedy.^[2] Four more states^[3] adopted the right before the federal Constitution was ratified, as did all three new states that joined the union before 1800.^[4]

In the absence of any surviving debate or discussion from the adoption of these provisions, our best opportunity to discover how the early framers intended to adapt the wisdom of Coke and Blackstone to the American experience comes from early judicial interpretations of the right. If the framers really intended to place a constitutional shield around the common law, that notion should appear in opinions applying the guarantee.^[5]

II. Early Interpretations

The first case I have found that mentions the remedies guarantee of a state constitution was decided in 1814. Upholding a Massachusetts law that abolished the common law right of landowners to sue mill owners for flooding, substituting a payments schedule instead, the Supreme Judicial Court, reasoned:

If it should be said that the legislature itself has not the constitutional authority to deprive a citizen of a remedy for a wrong actually done to him, the answer is obvious, that they have a right to substitute one process for another. . .^[6]

Early nineteenth century courts invariably recognized an adequate substitute as a defense to a remedies attack,^[7] even if the substituted remedy was “less convenient” or “more tardy and difficult.”^[8]

The remedies guarantee was first mentioned in an opinion striking down a law in 1821. The Supreme Court of Errors and Appeals of Tennessee relied on several federal and state constitutional grounds to invalidate a statute providing a two-year moratorium on executing on a judgment for debt unless the creditor agreed to accept the notes of certain banks in satisfaction. The Court noted that “[i]n Magna Charta this [the remedies] restriction is upon royal power; in our country it is upon legislative and all other power.”^[9] But based on Sullivan’s commentaries on Coke, the Court read the right to a remedy as protecting only “original and judicial process;”^[10] that is, “the mean whereby we may attain the end” of justice, or law.^[11] Thus, where “the law, operating on the contract when first made, held out to the creditor the promise of immediate execution after judgment,”^[12] the new statute for it violated the right to a remedy.

In reviewing statutes, nineteenth-century courts often applied the remedies clause interchangeably with federal and state impairment of obligation of contracts clauses, federal and state due process or due course guarantees, and federal and state prohibitions against ex post facto or retroactive laws.^[13] Debtor protection laws were struck down in this scattershot manner on several occasions before the Civil War, with the opinions not articulating the extent to which the remedies clause contributed to the end results.^[14]

The first case to strike down a government action based solely on the remedies clause again came from Tennessee, decided in 1835.^[15] The action condemned was not a law, but a justice-of-the-peace court rule requiring all motions for new trial to be made on the first Saturday after trial. Because “[i]t is the business of the courts to be open, where right and justice shall be administered,” the rule had to yield to the constitution.^[16] Later, several state courts voided laws that taxed access to the courts in one way or another beyond what was needed to support the judicial machinery.^[17]

The first case I have found that struck down a statute primarily on the basis of the remedies clause did not come until 1862, when the Supreme Court of Minnesota struck down a law denying access to the courts of the state to anyone “aiding the Rebellion.” After expounding their support for the Union cause, the justices observed that “in the end all must regard as a matter of pride and gratification, that in this state no one, not even the worst of felons, can be denied the right to simple justice.”^[18]

Yet even these modest holdings were not without controversy. When the Wisconsin Supreme Court in 1859 relied in part on the remedies clause to strike down a law giving a mortgagor six months to answer a foreclosure complaint, one justice vigorously dissented, characterizing as “extraordinary” the court’s position that:

[T]he remedy is under the control of the state; and, so long as the legislation only alters or impairs it, to what the judiciary deems a reasonable extent, then it is not within the constitutional prohibition; but when it does so to an unreasonable extent, then it is. . . .[T]his is . . .but a judicial discretion to revise legislation; and in my judgment, there is no authority for it in the constitution.^[19]

And in 1861, the Kentucky Supreme Court concluded:

The terms and import of this provision show that it relates altogether to the judicial department . . . which is to administer justice “by due course of law,” and not to the legislative department, by which such “due course of law” may be prescribed.

Any other construction would make it inconsistent with other clauses of the constitution, and, in fact, render it practically absurd.^[20]

Not until after the Civil War was there any reported opinion dealing with a remedies clause challenge to a statute limiting a tort claim. In 1874, the Pennsylvania Supreme Court upheld a law providing those who worked on or near a railroad only the same right to sue the railroad as the railroad’s employees would have.^[21] The Court concluded that no fundamental right had been “cut off or struck down,”^[22] because the doctrine of respondeat superior “is only an offspring of law.”^[23] Since the servant could still be sued for negligence, the law was constitutional. But the next year, the Supreme Court affirmed a judgment striking down a statute that limited a railway’s damages to $5000 for death and $3000 for personal injury, and the Supreme Court affirmed.^[24] While the court cited the Pennsylvania Constitution of 1874, it is not clear whether it relied solely on the remedies clause or a provision providing for no limitation of damages.^[25] Five years later the Supreme Court of Pennsylvania explained:

[W]e are not convinced that Railroad v. Cook should be overruled. Its authority is in conservation of the reserved right to every man, that for an injury done him in his person, he shall have a remedy by due course of law. The people have withheld power from the legislature to deprive them of that remedy, or to circumscribe it so that a jury can give only a pitiful fraction of the damage sustained. Nothing less than the full amount of pecuniary damage which a man suffers from an injury to him in his lands, goods or person, fills the measure secured to him in the Declaration of Rights.^[26]

Finally, in 1887, a federal district judge in Oregon alluded to the remedies clause as a grounds for invalidating a tort statute.^[27] The plaintiff sued a county for injuries sustained while crossing a defective bridge in a horse-drawn buggy.^[28] While the case was pending, the limited suits against counties to contract actions.^[29] The court stated that in its judgment, the statute was invalid because “the legislature cannot, in the face of [the remedies clause], deny to anyone a remedy by due course of law for an injury arising from the wrongful act or omission of a county.”^[30] However, the court concluded it was “content to rest the decision of this case on the conclusion that the amendment . . . does not and was not intended to affect the plaintiff’s right of action” because it was passed after the action commenced, and, as a rule of construction, had to be interpreted as applying to future actions.^[31]

Not until 1901 did a court rely squarely on the right to a remedy.^[32] In Mattson v. Astoria, a municipal ordinance completely eliminated all remedies for persons injured by a defective public street.^[33] The Oregon Supreme court held that “[t]he constitutional provision guaranteeing to every person a remedy by due course of law for injury done him in person or property . . . was intended to preserve the common-law right of action for injury to person or property, and while the legislature may change the remedy or form of procedure, attach conditions precedent to its exercise, and perhaps abolish old and substitute new remedies, it cannot deny a remedy entirely.”^[34]

In the last two decades of the nineteenth century, courts refused to resort to the remedies guarantee to strike down legislation, except that which struck down “vested” rights of action, such as those that spring “from contracts, or from principles of common law.”^[35] State judicial realization of the full import of the remedies clause did not come until the heydey of Lochnerism.^[36] Just as an earlier generation of state courts had used the remedies clause in combination with impairment of contracts, state courts now used the remedies clause in tandem with substantive due process to “enact Mr. Herbert Spencer’s Social Statics.”^[37] promote Herbert Spencer’s world view.

This aggressive use of the remedies clause, however, was tempered when state courts faced challenges to emerging workers’ compensation systems. All states eventually adopted these plans, and they were generally upheld by the courts, although in some instances constitutional amendments were necessary to satisfy or overcome judicial objections.^[38]

While inconsistent with some modern views of the right to a remedy, these early cases were surprisingly consistent with Blackstone’s view. In most early American cases, the courts were bound to supply a remedy for every right, whether created by common law or statute. But they were not bound to preserve any particular remedy or procedure for vindicating the right. As long as the new law preserved the injured person’s ability to vindicate his or her rights in court or provided an adequate substitute remedy, the right to a remedy was not violated. The courts also allowed legislatures to limit remedies derived from relative law, such as respondeat superior, in part because the injured person retained the right to obtain a judicial remedy against the individual who caused the injury, that is, the individual violated the injured person’s absolute right to personal security.

Most state courts also upheld legislative repeal of the so-called heart balm actions in the mid-twentieth century, but their reasons for doing so added still new variations to the doctrine.^[39] For example, in Pennington v. Stewart, the Indiana Supreme Court held that the affections of the plaintiff’s wife were not property rights.^[40] It further held that because marriage and divorce were controlled by the legislature, and a cause of action for alienation of affections was an incident marriage, it was also within the purview of the legislature to alter or eliminate the cause of action.^[41] Furthermore, in Haskins v. Bias, the Ohio Court of Appeals held that these causes of actions were no longer “properly considered recognizable at law” and had been severely criticized because “of their peculiar susceptibility to abuse and the changing attitude toward the status of women.”^[42] Article I, Section 16 of the Ohio Constitution did not apply because the court had previously held it only applied to “wrongs that are recognized by law.”^[43] One commentator, criticizing the heart-balm decisions, observed: “The fact that the legislature’s decision was not controversial does not make it constitutional if it denies fundamental rights.”^[44] And widely divergent outcomes resulted from challenges to the various statutes of repose passed in the 1960s and 1970s to help architects, engineers, builders and others in the construction field. Because these statutes cut off certain claims before they even arose, they were in tension with the established remedies doctrine in many states. Yet most of these statutes have been upheld against remedies attacks,^[45] though a significant number have been struck down.^[46]

Another wave of remedies challenges were brought against laws passed in the 1970s and 1980s regulating medical malpractice suits. Many portions of these statutes, if not entire laws, were struck down on equal protection,^[47] jury trial,^[48] privileges and immunities,^[49] and due process,^[50] separation of powers grounds,^[51] as well as on the right to a remedy.^[52] At the same time, state courts upheld a number of statutes against all such attacks.^[53]

Now remedies challenges are being leveled against many recent “tort reform” laws. Taking advantage of new state constitutional law treatises, law review articles, and increased interstate dialogue between state appellate justices, many current remedies opinions are often longer and more thoughtful, but as yet they are no more consistent. Indeed, current variations between and even within states are truly confounding. Justice Linde memorably observed that his own Supreme Court of Oregon “has written many individually tenable but inconsistent opinions” about the remedies guarantee.^[54]

III. Categories of Recent Decisions

Some scholars, wading through this morass, have attempted to classify or systematize the various approaches.^[55] Many of their approaches are instructive, though I do not find any compelling. At best, the disarray may be organized into certain rubrics which recur from state to state.

A. Quid Pro Quo

First, all states apparently recognize the doctrine of a substitute remedy, or quid pro quo, as a justification for legislative change. But some states hold that the substitute need only benefit society as a whole,^[56] while others require that it benefit the individual plaintiff.^[57] And when they require an individual benefit, courts differ on how closely the new remedy must replicate the one it replaced.^[58]

Even more disparity occurs when the statute does not provide a quid pro quo. Some courts hold that such laws must invariably be struck down.^[59] More opinions take something of a “due process” approach — that is, the courts will uphold the legislative choice if it bears a rational or perhaps a reasonable relationship to a legitimate or permissible legislative goal.^[60] But still other opinions, borrowing federal equal protection terminology, require something akin to intermediate scrutiny in deciding whether to permit the legislative restriction.^[61] A few decisions have required “an overpowering public necessity” to uphold a restriction without a substitute remedy.^[62] Finally, some opinions use different standards of scrutiny based on the nature of the remedy being infringed.^[63]

In evaluating the restriction, some opinions look only at the legislative purpose in changing the law, while others “balance” the loss of the plaintiff’s loss of a remedy against the general benefit to society.^[64] The standards articulated by courts for conducting this balance typically provide little guidance to constrain the judges’ personal preferences.^[65]

B. Application to Common Law Only

Second, regardless of the standard employed, most decisions hold that the remedies clause only impedes legislatures from altering or amending a common law remedy, not a statutorily-created one.^[66] Some opinions hold that the common law remedy must be “well-established.”^[67] That can merely mean that the remedy is older than the statute that allegedly impairs it,^[68] or that the remedy was settled when the constitution was adopted.^[69] But all these distinctions assume that the bench and bar can tell whether today’s cause of action is the same or different than one from a century or two ago, a task that sometimes confounds even legal historians.^[70]

Some judges reject all these distinctions as artificial.^[71] They see the guarantee as encompassing both statutory and common law provisions with importance rather age or pedigree being the principal inquiry. For example, one justice would apply the remedies provision to protect a statute, a judicial holding or even a custom which is “engrained into the fabric of the law so as to acquire fundamental and basic status.”^[72]

C. Delay or Denial of Access

Third, some opinions limit only statutes that delay or deny access to the courts, not those that deny or restrict substantive relief.^[73] Thus, in medical malpractice cases, Missouri has struck down pre-suit screening panels but upheld caps on damages.^[74] Others protect only against retroactive changes in the law. Thus, the legislature can change or abolish any cause of action, but the remedies clause protects the claims of those individuals whose causes of action had accrued at the time of the change.^[75] And some decisions hold, that the remedy clause is not violated by the complete abolition of a remedy if the legislature has left a plaintiff a similar remedy against other defendants.^[76]

D. No Restriction on Legislation

Finally, a significant number of opinions hold that the remedies guarantee does not constrain any substantive legislation. For example, in North Carolina, “the remedy constitutionally guaranteed must be one that is legally cognizable. The legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not.”^[77] Other courts have reached the same result by describing the guarantee as merely a general principle, not a constitutional standard.^[78]

IV. Should the Guarantee be Narrowly Construed?

In surveying this morass, it is certainly tempting to give the remedies guarantee a narrow or constricted scope. Among the reasons that suggest caution to me are these:

First, the paucity of historical information significantly impedes our ability to interpret and develop the clause with any confidence.^[79] Some jurists and scholars have suggested that constitutional texts which have never engendered broad interest or public debate do not deserve to be interpreted in the same broad fashion as the “great ordinances of the Constitution.”^[80]

Second, it is difficult to put parameters on the scope of judicial review in a remedies challenge. For example, if Congress is to make no law respecting the establishment of religion, then a court can test a law against a judicially-fashioned standard of what constitutes establishment. But the essence of lawmaking is the fixing of rights and responsibilities and the creation of remedies when they are breached. Logically, any change in any law that may be enforced through a civil action could violate the a remedies guarantee. But no one contends that the law can or should be frozen, or that only the judicial branch should be empowered as the agent of change. Thus, the remedies clause is clearly in tension with the separation of powers doctrine that is the genius of the American system. For example, forty-two states have constitutional or statutory reception clauses, providing that the common law shall control unless and until changed by statutory law.^[81] The remedies guarantee must be harmonized with the legislature’s undoubted right to make broad policy.^[82] As one justice has queried: “How do courts supply content to the provision without overstepping their traditional role and legislating themselves?”^[83]

Third, our view of the common law is quite different from that of the founders two centuries ago. Their guides were Coke and Blackstone, for whom the common law was not simply a judicial creation. Rather it was a pre-existing body of truth, in part or in whole divinely inspired,^[84] that was merely “discovered” by judges. Thus, “[c]ases were mere evidence of the law as opposed to comprising the law itself.”^[85] Today, we regard the common law as dynamic, not static. We see judicial opinions not as “mere evidence of the law’s content,”^[86] but as the law itself. Is this mutable, temporary, and very obviously human law as worthy of constitutional protection as a “brooding omnipresence in the sky?”^[87]

Fourth, the scope and function of the common law has changed rather dramatically since most states adopted their remedies provisions. In 1776, and well into the nineteenth century, most law was judge-made, not statutory.^[88] Christopher Columbus Langdell, after all, felt able to teach the “science” of law exclusively through the “case method.”^[89] But as codified law increased, more rights and remedies were legislatively, not judicially, created.^[90] From wrongful death acts to private antitrust actions to the Uniform Commercial Code to consumer protection statutes, legislatures, not courts, now are the prime creators of new rights and remedies. Can state courts in good conscience say to their legislatures, “well, sure, you’ve created all these causes of action for all these wrongs, but you can’t touch this right because some judge recognized it in England a few hundred years ago.” Isn’t that ignoring the beam in the judicial eye while obsessing on the mote in the legislative one? Moreover, if early nineteenth century state courts did not accord constitutional protection to common law remedies when they were much more pervasive than they are now, why should modern courts strain to protect such remedies?

Fifth, and finally, the aggressive use of the remedies guarantee creates the danger of a “see-saw” battle between judges and legislators.^[91] Already, legislatures in at least two states have sent constitutional amendments to the voters to overrule remedy decisions by the state supreme court.^[92] Moreover, the continued judicial rejection of popularly supported legislative changes risks “federalizing” more law, as proponents of reform will turn to Congress to provide national solutions to problems traditionally left to the states. One example is the on-going attempts to federalize the law of products liability.^[93] I do not say that courts should disregard the law for prudential concerns. But as a Texan, I do offer for guidance Congressman David Crockett’s motto: “Be sure you are right, then go ahead.”^[94]

V. New Approaches to Interpreting the Remedies Guarantee

Mindful of such considerations, many scholars have devised new approaches to reign in the remedies clause. For instance, one professor would allow the legislature to abolish a cause of action entirely, because that’s substantive, but not to place limitations or restrictions on that could be deemed procedural on the same cause of action.^[95] That has the perverse effect of encouraging the legislature to make wholesale changes in common law principles when a mere tweak could satisfy the perceived need for change. Another commentator suggests that “[a]n open courts clause analysis consistent with the origins of the provision should focus not on whether the legislature has abolished a ‘remedy’ but on whether the challenged action compromises the judiciary as an independent branch of government.”^[96] This may be close to right, but it needs more explication to be useful. Some of my colleagues feel compromised when ever the legislature is sitting, while for others only a reduction in judicial pay would meet that standard! Finally, one scholar’s proposal that a court may authorize a remedy only when the legislature has created a right without a remedy^[97] would be useful only if the lawmakers are singularly perverse or dim-witted.

Given all these problems, is the remedies guarantee merely constitutional detritus, like a Rhode Islanders’ fundamental right to gather seaweed on the beach?^[98] Not at all. Certainly, remedies jurisprudence has much to offer in enhancing access to justice the best years of the clause may lie ahead. As one scholar has noted, “the state declarations embody a much broader concept of access than does the first amendment as interpreted by the Supreme Court.”^[99] In an era when “there is too much law for the rich and too little law for the poor,” in Derek Bok’s felicitous phrase^[100] the remedies clause may impose some level of responsibility on courts to see that all citizens secure the promise of equal justice under law.^[101] When one sees legislatures willing to create new courts only if they will produce a positive revenue stream from fines and fees, the guarantee may help preserve an independent and co-equal judiciary.^[102] And when our nation’s highest court refuses to let cameras broadcast its proceedings, and allows near-contemporaneous audio broadcasts only if the presidency is perceived to be at stake,^[103] the open courts guarantee might be read to ensure meaningful public access to state court proceedings in an era of tiny courtrooms but global interconnectivity.

As to whether and to what extend the right to a remedy should preserve substantive rights from legislative encroachment, I must confess continued irresolution. But let me offer one hypothesis, or rather a provisional hypothetical, of how a close reading of history might support a definite, but limited, role for the guarantee in curbing legislative excess. Consider again Blackstone’s hierarchy of rights, which was familiar to the framers of our eighteenth and nineteenth century constitutions.^[104] Blackstone considered the primary absolute rights — personal security, personal liberty, and property — to be protected by the subordinate absolute rights, such as right to a remedy.^[105] Many causes of action that legislatures have typically sought to restrict, including loss of consortium, alienation of affections or respondeat superior, would surely to Blackstone be mere relative rights that could be altered or abolished.^[106] Moreover, even absolute rights could be protected through administrative schemes or alternate dispute resolution mechanisms, so long as these procedures adequately protected the claimant. Furthermore, many elements of damages that have raised legislative skepticism, such as mental anguish or hedonic damages, would not be proscribed by Blackstone because freedom from psychological torment was not regarded as an absolute right. Punitive damages and other elements which do not redress an injury would also be outside the scope of the Blackstonian remedy.

But if a legislature, perhaps buckling to inordinate pressure from a well-organized and highly vocal special interest group, sought to deny all recovery for a well-recognized action that did implicate absolute rights, the remedy guarantee would come into play. Under this approach, medical lobbyists would be checked if they convinced a state to abolish all medical malpractice claims, railroad interests could not succeed in eliminating all crossing claims, and retail groups could not end all slip and falls. As the Supreme Court of Maine has concluded, the remedies guarantee forbids legislative limitations “so unreasonable as to deny meaningful access to judicial process.”^[107] Thus, consistent with both the ancient notions of Blackstone and the modern realities of legislative and judicial roles, a right to a remedy along these lines could be a narrow but potent protection for basic rights.

VI. Conclusion

Given the continuing importance of remedies law, I submit that state courts have an urgent responsibility to develop a coherent, reasonable doctrine for resolving these cases. Closer attention to the history and purpose of the clause may help state courts meet this challenge. While tonight’s address does not purport to provided final answers, it hopefully has provoked further productive thought.

---

^[1]Gordon Wood, Foreward: State Constitution-Making in the American Revolution, 24 Rutgers L.J. 911, 920 (1993) (quoting The Crisis, No. XI, 81-87 (New York, 1775). The initial American Constitutional initiative was chaotic, not systematic. Some states kept their royal charters throughout the Revolution or beyond, while others were unsure about whether or to what extent their constitutions actually constrained legislative behavior. Some states tried to ensure the primacy of the new documents by declaring some or all parts of the new constitutions to be unchangeable (as in Virginia and Delaware) or by requiring extraordinary legislative majorities to change (as in Delaware, Maryland and New Jersey). Vermont, unsure whether a constitutional convention was legal, went so far as to have its legislature re-enact its 1777 constitution. Id. at 920-24.

^[2]Section 12 of the Declaration of Rights and Fundamental Rules of the Delaware State, passed September 11, 1776, borrowed language from Lord Coke to provide:

That every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by the due course of the law of the land, and ought to have justice and right for the injury done to him freely without sale, fully without denial, and speedily without delay, according to the law of the land.

Section 26 of the Plan or Frame of Government for the Commonwealth or State of Pennsylvania provided: “All courts shall be open, and justice shall be impartially administered without corruption or were simply unnecessary delay.” Pa. Const. of 1776, Plan or Frame of Government for the Commonwealth or State of Pennsylvania, § 26, available at http://www.yale.edu/lawweb/avalon/states/pa08.htm (The Avalon Project at Yale Law School) (last visited 7/01/02) (citing The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America (compiled and edited under the Act of Congress of June 30, 1906 by Francis Newton Thorpe, Washington, D.C.: Government Printing Office, 1909)).

The distinctions between these two provisions form the basic division between remedies clauses today. See supra notes 8-9.

^[3]Maryland, Massachusetts, New Hampshire, and North Carolina all followed the Delaware model, although North Carolina’s constitutional provision applied only to persons restrained of their liberty. Md. Const. of 1776, A Declaration of Rights, and the Constitution and Form of Government agreed to by the Delegates of Maryland, in Free and Full Convention Assembled, art. 17, available at http://elsinore.cis.yale.edu/lawweb/avalon/states/ma02.htm (The Avalon Project at Yale Law School) (last visited 7/03/02); Mass. Const. of 1780, Part 1: A Declaration of Rights of the Inhabitants of the Commonwealth of Massachusetts, art. 11, available at http://www.nhinet.org/ccs/docs/ma-1780.htm (National Humanities Institute 1999) (last visited 7/05/02); New Hampshire Const. of 1784, Part 1: Bill of Rights, art. 14, in 4 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 2455 (compiled and edited under the Act of Congress of June 30, 1906 by Francis Newton Thorpe, Washington, D.C.: Government Printing Office, 1909); N.C. Const. of 1776, A Declaration of Rights, art. 13, available at http://elsinore.cis.yale.edu/lawweb/avalon/states/nc07.htm (The Avalon Project at Yale Law School) (last visited 7/03/02) (citing The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America (compiled and edited under the Act of Congress of June 30, 1906 by Francis Newton Thorpe, Washington, D.C.: Government Printing Office, 1909)).

^[4]Kentucky, Tennessee, and Vermont, all of which followed the Pennsylvania model. Ky. Const. of 1792, art. 12, § 13, in 3 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 1275 (compiled and edited under the Act of Congress of June 30, 1906 by Francis Newton Thorpe, Washington, D.C.: Government Printing Office, 1909); Tenn. Const. of 1796, art. 11, § 17, available at http://vi.uh.edu/pages/alhmat/tenncon.html (University of Houston History Department) (last visited 7/03/02); Vt. Const. of 1777, Ch. 2: Plan or Frame of Government, § 23, available at http://elsinore.cis.yale.edu/lawweb/avalon/states/vt01.htm (The Avalon Project at Yale Law School) (last visited 7/03/02) (citing The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America (compiled and edited under the Act of Congress of June 30, 1906 by Francis Newton Thorpe, Washington, D.C.: Government Printing Office, 1909)).

Delaware itself switched to the Pennsylvania model in 1792, with Art. I, Section 9 of its new constitution providing:

All courts shall be open; and every man for an injury done him in his

reputation, person, moveable or immoveable possessions, shall have

remedy by the due course of law, and justice administered according to

the very right of the cause, and the law of the land, without sale, denial,

or unreasonable delay or expense;¼

1 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 569 (compiled and edited under the Act of Congress of June 30, 1906 by Francis Newton Thorpe, Washington, D.C.: Government Printing Office, 1909). Today, twenty-eight states use something resembling the original Pennsylvania formulation; only ten states still adhere to Coke’s language. See John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake Forest L. Rev. 237, 244, 284-88 (1991) (providing a complete list of state-constitution remedies provisions).

^[5]Of the eight states which accompanied their ratification of the federal Constitution with suggestions for additional amendments, three included a remedies provision. The Virginia Ratification Convention proposed:

That every freeman ought to find a certain remedy by recourse to the laws

for all injuries and wrongs he may receive in his person, property or

character. He ought to obtain right and justice freely and without sale,

completely and without denial, promptly and without delay, and that all

establishments or regulations, contravening these rights, are oppressive and

unjust.

10 The Documentary History of the Ratification of the Constitution: Ratification of the Constitution: Virginia 1552 (Kaminski and Saladino eds., Madison: State Historical Society of Wisconsin, 1993); 18 The Documentary History of the Ratification of the Constitution: Commentaries on the Constitution 202, 315 (Kaminski and Saladino eds., Madison: State Historical Society of Wisconsin, 1995). North Carolina submitted a proposed amendment identical to Virginia’s. Compare Ratification of the Constitution by the State of North Carolina; November 21, 1789, available at <http://www.yale.edu/lawweb/avalon/const/ratnc.htm> (The Avalon Project at Yale Law School) (last visited 11/13/02), with Ratification of the Constitution by the State of Virginia; June 26, 1788, available at <http://www.yale.edu/lawweb/avalon/const/ratva.htm. Rhode Island’s statement of ratification included this proposal:

That every freeman ought to obtain right and justice freely and without sale; completely, and without denial; promptly, and without delay; and that all establishments and regulations contravening these rights are oppressive and unjust.

William R. Staples, Rhode Island in the Continental Congress, with the Journal of the Convention that Adopted the Constitution, 1765-1790, 652, 676 (Reuben Aldridge Guild ed., Providence, Providence Press Co., Printers to the State, 1870), available at http://name.umdl.umich.edu/AQJ4219.

The Virginia proposals were submitted to ratifiers in New York, Letter, George Mason to John Lamb, June 9, 1788, 9 The Documentary History of the Ratification of the Constitution: Ratification of the Constitution by the States: Virginia 818 (Kaminski and Saladino eds., Madison: State Historical Society of Wisconsin, 1990), but the New Yorkers did not include a remedies guarantee in their own proposals. Ratification of the Constitution by the State of New York; July 26, 1788, available at <http://www.yale.edu/lawweb/avalon/const/ratny.htm> (The Avalon Project at Yale Law School) (last visited 11/13/02). Of the six states with a remedies provision in their own constitution, only North Carolina recommended that the federal constitution follow suit.

Despite the Virginia recommendation, Congressman James Madison from that state, who led the effort to adopt a federal bill of rights, did not propose a remedies clause for the Bill of Rights. Moreover, there is no record that any member of the House of Representatives urged its inclusion. But in the Senate, an amendment to guarantee a remedy for all injuries or wrongs was offered and rejected on September 8. Koch, Jr., supra note 31, at 374-75.

Because of the limited role of federal courts under the new government, the members of the First Congress were wise to exclude the right to a remedy from the new Constitution. See Hans Linde, Without “Due Process”: Unconstitutional Law in Oregon, 49 Or. L. Rev. 125, 138 n.38 (1970) (the limited role of the federal government in matters of common law justified the exclusion of a right to a remedy, but the inclusion of the federal due process clause in the Bill of Rights “made sense” as a way to “secure that the new government would exercise its untried powers over life, liberty, and property by due process of law.”). After all, the Constitution requires only one federal court, the Supreme Court, with Congress empowered but not required to create inferior courts. And the Constitution did not intend for federal judges to take the lead in creating or modifying common law causes of action. See Erie Railroad v. Tompkins, 304 U.S. 64, 78 (1938) (“Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or “general,” be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power on the federal courts.”).

For many years, it appeared that the federal constitution might still protect the right to a remedy under the due process clause. For a discussion of that development, see supra note 41 above.

^[6]Stowell v. Flagg, 11 Mass. 364, 1814 WL 1038, at *2 (1814).

^[7]See, e.g., Von Baumbach v. Bade, 9 Wis. 559, 1859 WL 2864, at *10 (1859) (“All the authorities agree that it is within the power of the legislature to repeal, amend, change, or modify the laws governing proceedings in courts¼so that they leave the parties a substantial remedy.”).

^[8]Bronson v. Kinzie, 42 U.S. 311, 316, 1 How. 311 (1843) (observing that a state may alter a remedy so long as “the alteration does not impair the obligation of the contract”).

^[9]Townsend v. Townsend, 7 Tenn. 1, 1821 WL 393, at *10 (Tenn.Err. & App. 1821).

^[10]Id. at *11.

^[11]Id.

^[12]Id.

^[13]E.g., Commercial Bank of Natchez v. Chambers, 16 Miss. 9, 1847 WL 1741 (Miss.Err. & App. 1847); Riggs, Peabody, & Co. v. Martin, 5 Ark. 506, 1844 WL 432 (1844); Townsend v. Townsend, 7 Tenn. 1 (Tenn.Err. & App. 1821); Von Baumbach v. Bade, 9 Wis. 559, 1859 WL 2864 (1859).

^[14]When reading early cases with a modern eye, it is often difficult to find precisely on what authority a court purports to act. Unlike today’s courts, which generally resolve cases on a single ground and which dismiss as dicta any statement not directly necessary to that holding, courts in the 1800s routinely struck down laws on every applicable ground and without any indication that only one of the alternative holdings was law. E.g., Davis v. Pierse, 7 Minn. 13 (1862) (striking down stay law under five constitutional provisions, including the remedies clause, contracts clause, prohibition on ex post facto laws, privileges and immunities clause and the guarantee of a grand jury in criminal matters); see also Commercial Bank of Natchez v. Chambers, 16 Miss. 9, 1847 WL 1741 (Miss.Err. & App. 1847); Von Baumbach v. Bade, 9 Wis. 559, 1859 WL 2864 (1859).

In other cases of that period, the court would fail to identify any particular authority for a judicial outcome. As late as 1871, the Chief Justice of Wisconsin said in what may have been a remedies case:

I care very little whether it is placed on those fundamental principles of law and justice which, in our form of government is has been held that no legislative body can override, even though not prohibited by the written constitution, or upon the provisions of the constitution itself, some of which clearly forbid the enactment of such laws.

Durkee v. City of Janesville, 28 Wis. 464, 1871 WL 2939 *2; see Judith S. Kaye, Forward: The Common Law and State Constitutional Law as Full Partners in the Protection of Individual Rights, 23 Rutgers L.J. 727, 730-32 (1992) (observing that the common law and constitutional law often embody the same principles, and commenting that “the mere fact that a common law right received constitutional recognition did not signify that it was thereby extinguished as a common law right”).

^[15]Pawley v. McGimpsey, 15 Tenn. 502, 1835 WL 883 (Tenn.Err. & App. 1835).

^[16]Id. at *2.

^[17]Thus, early decisions upheld a five dollar tax on losing litigants, Harrison, Pepper & Co. v. Willis, 54 Tenn. 35, 1871 WL 3911, at *6 (1871) (tax does not violate the “letter or spirit” of the open courts clause), and a three dollar fee to obtain a jury trial. Adams v. Corriston, 7 Minn. 456, 1862 WL 1291, at *5 (1862) (“[t]he constitution does not guarantee to the citizen the right to litigate without expense, but simply protects him from the imposition of such terms as unreasonably and injuriously interfere with his right to a remedy”). See also State ex. rel Davidson v. Gorman, 41 N.W. 948, 950 (Minn. 1889); Flood v. State, 117 So. 385, 387 (Fla. 1928). But at least one court struck down a law requiring a tax or assessment to be paid before it could be challenged in court. Weller v. City of St. Paul, 5 Minn. 95, 1860 WL 2892, at *6 (1860) (construing the “unconscionable and unjust” tax requirement as potentially “amount[ing] to an entire denial of justice”); see also Wilson v. McKenna, 52 Ill. 43, 1869 WL 5382 (Ill. 1869) (striking down revenue law requiring a party to show he has paid all the taxes due on land before challenging a tax title set up against him); Bennet v. Davis, 37 A. 864 (Me. 1897) (striking down statute requiring party to pay the amount claimed against him, including costs and interest, before beginning his defense).

^[18]Davis v. Pierse, 7 Minn. 13, 1862 WL 1242, *6-7 (1862) (declaring that “the legislature cannot, directly or indirectly¼deprive [a citizen] of his constitutional right to commence, maintain, or defend any action or other judicial proceeding”).

^[19]Von Baumbach v. Bade, 9 Wis. 559, 1859 WL 2864, at *16 (Paine, J., dissenting).

^[20]Johnson v. Higgins, 60 Ky. 566, 1862 WL 4825, at *5 (1862).

^[21]Kirby v. Pa. R.R. Co., 76 Pa. 506, 1874 WL 13229 (1874).

^[22]Id. at *3.

^[23]Id.

^[24]Central R.R. of N.J. v. Cook, 1 W.N.C. 319 (Pa. 1875).

^[25]Id.

^[26] Thirteenth and Fifteenth St. Passenger Rail Co. v. Boudrou, 8 W.N.C. 241, 92 Pa. 475, 1880 WL 13607, at *6 (1880).

^[27]Eastman v. County of Clackamas, 32 F. 24 (D.Or. 1887).

^[28]Id. at 25.

^[29]Id.

^[30]Id. at 32.

^[31]Id. But see Templeton v. Linn County, 29 P. 795 (Or. 1892) (refusing to strike down statute based on the remedies guarantee).

^[32]Mattson v. Astoria, 65 P. 1066 (Or. 1901).

^[33]Id. at 1066.

^[34]Id. at 1067.

^[35]See Mayor and Council of Wilmington, v. Ewing, 43 A. 305 (Del. 1899); Edwards v. Johnson, 5 N.E. 716 (Ind. 1886); Templeton v. Linn County, 29 P. 795, 797, 22 Or. 313, 318 (1892); Schuman, supra note 42, at 46.

^[36] Lochner v. New York, 198 U.S. 45 (1905).

^[37]Id. at 74 (Holmes, J., dissenting); Herbert Spencer, The Man Versus the State 19 (John Offer ed., Cambridge University Press 1994) (man’s liberty “is to be measured, not by the government machinery he lives under, but by the relative paucity of the restraints it imposes on him”).

^[38] 99 C.J.S. Workman’s Compensation §§17-19 (1958). Decisions to uphold the statute were decided frequently on the basis that the employee or employer, or both, had the ability to opt out of the scheme. See, e.g., Shade v. Ash Grove Lime & Portland Cement Co., 144 P. 248, 250 (Kan. 1914) (because the compensation system rests on the consent of the employer and employee, all remedies under common and statutory law remain intact); Matheson v. Minneapolis St. Ry. Co., 148 N.W. 71, 75 (Minn. 1914) (same); Shea v. North-Butte Mining Co., 179 P. 499 (Mont. 1919); Evanhoff v. State Indus. Acc. Comm’n, 154 P. 106, 111 (Or. 1915) (same); Scott v. Nashville Bridge Co., 223 S.W. 844, 852 (Tenn. 1920) (no deprivation because the act is optional and not compulsory).

^[39]See Rotwein v. Gersten, 36 So. 2d 419 (Fla. 1948) (in the public interest to abolish alienation of affections). But see Heck v. Schupp, 68 N.E.2d 464 (Ill. 1946) (striking down repeal).

^[40]10 N.E.2d 619, 621 (Ind. 1937).

^[41]Id.

^[42]441 N.E.2d 842, 844 (Ohio Ct. App. 1981).

^[43]Id.

^[44]John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of State Courts, 26 Wake Forest L. Rev. 237, 278 (1991)

^[45]See, e.g., Carter v. Hartenstein, 455 S.W.2d 918, 921 (Ark. 1970); Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 827 (Colo. 1983); Zapata v. Burns, 542 A.2d 700, 709-11 (Conn. 1988); Cheswold Vol. Fire Co. v. Lambertson Const., 489 A.2d 413, 417 (Del. 1984); Twin Falls Clinic & Hospital Bldg. v. Hamill, 644 P.2d 341, 346 (Idaho 1982); Beecher v. White, 447 N.E.2d 622, 628 (Ind. App. 1983); Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1387-88 (La. 1978); Whiting-Turner Contracting Co. v. Coupard, 499 A.2d 178, 188-89 (Md. 1985); Klein v. Catalano, 437 N.E.2d 514, 522 (Mass. 1982); Anderson v. Fred Wagner and Roy Anderson, Jr., Inc., 402 So.2d 320, 324 (Miss. 1981); Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822, 832-33 (Mo. 1991) (en banc); Reeves v. Ille Electric Co., 551 P.2d 647, 650-51 (Mont. 1976); Williams v. Kingery Const. Co., 404 N.W.2d 32, 34 (Neb. 1987); Lamb v. Wedgewood South Corp., 302 S.E.2d 868, 880-82 (N.C. 1983); Loyal Order of Moose, Lodge 1785 v. Cavaness, 563 P.2d 143, 146 (Okl. 1977) (holding that the statute is nevertheless an unconstitutional violation of the federal equal protection provision); Josephs v. Burns, 491 P.2d 203, 207 (Or. 1971), abrogated by Smothers v. Gresham Transfer, Inc., 23 P.3d 333, 356 (Or. 2001); Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715, 720-21 (Pa. 1978); Walsh v. Gowing, 494 A.2d 543, 547-48 (R.I. 1985); Harmon v. Angus R. Jessup Associates, Inc., 619 S.W.2d 522, 524 (Tenn. 1981); Trinity River Auth. v. URS Consultants, 889 S.W.2d 259, 261-63 (Tex. 1994).

^[46]See Jackson v. Mannesmann Demag Corp., 435 So.2d 725, 727-28 (Ala. 1983); Overland Const. Co., Inc. v. Sirmons, 369 So.2d 572, 575 (Fla. 1979); Saylor v. Hall, 497 S.W.2d 218, 222-25 (Ky. 1973); Perkins v. Northeastern Log Homes, 808 S.W.2d 809 (Ky. 1991); Brennaman v. R.M.I. Co., 639 N.E.2d 425, 430 (Ohio 1994), overruling Sedar v. Knowlton Const. Co., 551 N.E.2d 938, 947 (Ohio 1990); Daugaard v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419, 424-427 (S.D. 1984); Horton v. Goldminer’s Daughter, 785 P.2d 1087, 1096 (Utah 1989); Kallas Millwork Corp. v. Square D Co., 225 N.W.2d 454, 460 (Wis. 1975); Phillips v. ABC Builders, Inc., 611 P.2d 821, 831 (Wyo. 1980).

^[47]Austin v. Litvak, 682 P.2d 41 (Colo. 1984) (three-year statute of repose for medical malpractice actions violated state equal protection guarantee as to one class of claims, and not others); Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155 (1984) (medical malpractice statute of limitations violated equal protection); Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987) (abrogation of collateral source rule violates federal and state equal protection clauses); Wentling v. Medical Anesthesia Servs., 237 Kan. 503, 701 P.2d 939 (1985) (abrogation of collateral source rule violates equal protection); Schwan v. Riverside Methodist Hosp., 6 Ohio St. 3d, 452 N.E.2d 1337 (1983) (one year statute of limitations as applied to minors over ten years of age violates equal protection--no rational basis); White v. State, 283 Mont. 363, 661 P.2d 1272 (1983) ( $300,000 damage cap on non-economic damages violates equal protection); Coffey v. Bresnahan, 127 N.H. 687, 506 A.2d 310 (1986) (statute of limitations violates equal protection by barring suits of tort plaintiffs in survival actions after two years, when other tort plaintiffs could recover for six years); Carson v. Maurer, 126 N.H. 925, 424 A.2d 825 (1980) (virtually all features of malpractice act held unconstitutional remaining provisions non-severable, and therefore, invalid); Jiron v. Mahlab, 99 N.M. 425, 659 P.2d 311 (1983) (review panel violates right of access to courts); Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978) (modification of collateral source rule and cap on damages violates equal protection); Duren v. Suburban Community Hosp., 24 Ohio Misc. 2d 25, 482 N.E.2d 1358 (1985) ($200,000 damage cap violates equal protection); Graley v. Satayatham, 74 Ohio Op. 2d 316, 343 N.E.2d 832 (1976) (modification of collateral source rule violates equal protection); Boucher v. Sayeed, 459 A.2d 87 (R.I. 1983) (pre- trial screening panel violates equal protection); Baptist Hosp. of S.E. Tex., Inc. v. Baber, 672 S.W.3d 296 (Tex. App. 1984) aff'd, 714 S.W.2d 310 (Tex. 1986) ($500,000 damage cap violates equal protection).

^[48]Simon v. Saint Elizabeth Medical Center, 3 Ohio Op. 3d 164, 355 N.E.2d 903 (1976) (admission of review panel finding at trial violates right to jury trial and equal protection); Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984) (limitation on attorneys' fees held unconstitutional violation of right to jury trial); Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980) (delay in pre-screening panel requirement violates right to trial by jury); Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986) (damage cap violates Virginia's right to jury trial).

^[49]Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977) (requirement that party not prevailing before panel post $2000 bond before proceeding to trial violated state privileges and immunities clause).

^[50]Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978) (invalidating statute limiting total damages recoverable in a medical malpractice action on substantive due process grounds); Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709 (Ohio 1987) (statute of repose unconstitutionally applied to medical malpractice victim who discovered injury during period of repose but had an unreasonably short amount of time to file suit); Duren v. Suburban Community Hosp., 24 N.E. 51, 56 (Ohio 1985) (invalidating $200,000 limitation on general damages recoverable in medical malpractice action); Flippin v. Jarrell, 270 S.E.2d 482 (N.C. 1980) (statute of limitations in medical malpractice action violated due process rights by providing unreasonable time to file claim after discovery).

^[51]Bernier v. Burris, 113 Ill. 2d 219, 497 N.E.2d 763 (1986) (pre-trial screening panels violate separation of powers under state constitution); Wright v. Central Du Page Hosp. Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736 (1976) (pre-trial screening panels violate separation of powers, and damage cap provision violates prohibition against special legislation); Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978) ( ipsa loquitur provisions violate exclusive authority of state supreme court to establish rules of evidence).

^[52]Smith v. Dept. of Ins., 507 So. 2d 1080 (Fla. 1987) ($450,000 damage cap violated right of access to courts); Aldana v. Holub, 381 So. 2d 231 (Fla. 1980) (review panel process violates state due process right of access to courts); Strahler v. St. Luke's Hosp., 706 S.W.2d 7 (Mo. 1986) (statute of limitation applicable to minors violates right of access to courts); State ex rel. Cardinal Glennon Memorial Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. 1979) (statutorily required pre-trial panel review violates right of access to courts by imposing delay before jurisdiction is obtained); Hardy v. VerMeulen, 32 Ohio St. 3d 45, 512 N.E.2d 626 (1987) (restrictions on statute of limitations by abolishing discovery rule violates constitutional provision granting right to remedy); Neagle v. Nelson, 685 S.W.2d 11 (Tex. 1985) (statute of limitations violates right of access to courts); Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984) (statute of limitation cutting off cause of action before discovery held unconstitutional); Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983) (two-year statute of limitations violates open courts).

^[53]Fein v. Permanente Medical Group, 695 P.2d 665 (Cal. 1985), appeal dismissed, 474 U.S. 892 (1985); Lacy v. Green, 428 A.2d 1171 (Del. Super. 1981); Attorney General v. Johnson, 385 A.2d 57 (Md. 1978), appeal dismissed, 439 U.S. 805 (1978); State ex rel. Strykowski v. Wilkie, 261 N.W.2d 434 (Wis. 1978); Comiskey v. Arlen, 55 A.D.2d 304, 390 N.Y.S.2d 122 (1976), aff'd, 43 N.Y.2d 696, 401 N.Y.S.2d 200 (1977); see, e.g., Richard C. Turkington, Constitutional Limitations on Tort Reform: Have the State Courts Placed Insurmountable Obstacles in the Path of Legislative Responses to the Perceived Liability Insurance Crisis? 32 Vill. L. Rev. 1265, 1317-19 n.52 (1987).

^[54]Hale v. Port of Portland, 783 P.2d 506, 518 (Or. 1989) (Linde, J., concurring). See also Martin B. Marguiles, Connecticut’s Misunderstood Remedy Clause, 14 QLR 217 (1994); Thomas P. Lewis, Jural Rights Under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

^[55]See, e.g., Jennifer Friesen, 1 State Constitutional Law: Litigating Individual Rights, Claims, and Defenses _6-2(c) (3rd ed.2000); Francis McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am. U. L. Rev. 579, 616 (1981); David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197, 1205-17 (1992); Patrick E. Sullivan, Note, Medical Malpractice Statute of Repose: An Unconstitutional Denial of Access to the Courts, 63 Neb. L. Rev. 150, 170-77 (1983); Janice Sue Wang, Note, State Constitutional Remedy Provisions and Article 1, Section 10 of the Washington State Constitution: The Possibility of Greater Judicial Protection of Established Tort Causes of Action and Remedies, 64 Wash. L. Rev. 203, 208-11 (1989).

^[56]See Lemuz v. Feiser, 933 P.2d 134, 150 (Kan 1997) (finding that risk management requirements that benefit the public are adequate quid pro quo for cause of action against a hospital for corporate negligence).

^[57]See Estabrook v. American Hoist & Derrick, Inc., 498 A.2d 741, 746-8 (N.H. 1985), overruled by Young v. Prevue Products, Inc., 534 A.2d 714, 717 (N.H. 1987).

^[58]See Schuman, supra note 94, at 1210-11. Compare Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 521 (Tex. 1995) (comparing the quid pro quo to the common law remedy), with Bair v. Peck, 811 P.2d 1176, 1191 (Kan. 1991) (stating that the proper test is “whether the substitute remedy would have been sufficient if the modification had been part of the original act”).

^[59]Smothers v. Gresham Transfer, Inc., 23 P.3d 33, 356 (Or. 1999) (legislature must provide a substitute remedial process when it abolishes any pre-1857 common law right).

^[60]Thus, West Virginia courts will uphold a law whose purpose is “to eliminate or curtail a clear social or economic problem, and the alteration or repeal of the existing cause of action or remedy is a reasonable method of achieving such purpose.” Lewis v. Canaan Valley Resorts, Inc., 408 S.E.2d 634, 645 (W. Va. 1991). See also Haney v. Int’l Harvester Co., 201 N.W.2d 140, 146 (Minn. 1972) (no substitute needed “if abolition is in pursuit of a permissible legislative objective”); Green v. Seigel, Barnett & Schutz, 557 N.W.2d 396, 401-04 (S.D. 1996); Berry v. Beech Aircraft Corp., 717 P.2d 67, 680 (Utah 1985) (must be a substantially equal alternative benefit unless “clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective”).

^[61]See Kenyon v. Hammer, 688 P.2d 961, 979 (Ariz. 1984) (applying strict scrutiny equal protection analysis because the state constitutional guarantee of open courts makes the right to a remedy fundamental); White v. State, 661 P.2d 1272, 1274 (Mont. 1983) (using a similar analysis), overruled by Meech v. Hillhaven West, Inc., 776 P.2d 488 (Mont. 1989).

^[62]Psychiatric Associates v. Siegel, 610 So.2d 419, 424 (Fla. 1992). But see Agency for Health Care Admin. v.. Assoc. Indus., 678 So.2d 1239, 1253 (Fla. 1996) (clarifying that a lesser standard applies when the legislature abolishes affirmative defenses.

^[63]See Murphy v. Edmonds, 601 A.2d 102, 113-14 (Md. 1992) (quid pro quo required when statute abrogates recovery for violation of fundamental rights, but maybe not when other common law rights are abrogated).

^[64]See Strahler v. St. Luke’s Hosp., 706 S.W.2d 7, 11-12 (Mo. 1986) (en banc) (medical malpractice statute of repose struck down because cost to injured persons outweighs societal good).

^[65]As I said in my dissent in Lucas v. United States, 757 S.W.2d 687, 717 (Tex. 1988):

With all due respect, these approaches [in the court’s other three opinions] all suffer from a common vice: they require this court to strike a delicate balance between important competing interests without any standards for evaluating the relative importance of those interests. This unfettered discretion leaves us with little more than our personal predilections on which to rely in reaching our decision. One justice therefore finds the cap to be “reasonable,” the other justices condemn the cap as “unfair and unreasonable” or “unreasonable and arbitrary.”

(citations omitted).

^[66]See, e.g., Olson v. Ford Motor Co., 558 N.W.2d 491, 497 (Minn. 1997); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex. 1990). But see Kluger v. White, 281 So.2d 1, 4 (remedy is protected if provided by a statute passed prior to effective date of constitution or if created by common law at any time).

^[67]Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 261 (Tex. 1994).

^[68] See, e.g., Olson v. Ford Motor Co., 558 N.W.2d 491, 497 (Minn. 1997) (seat belt gag rule not a violation where it is older than crashworthiness doctrine it supposedly impaired); Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 263 (Tex. 1994) (statute of repose not unconstitutional because common law had not recognized discovery rule at time statute had passed).

^[69]Stein v. Katz, 567 A.2d 1183, 1186 (Conn. 1989) (attempt to strike down dental repose statute failed because the plaintiff died before trial and negligence claims abated at death under the common law when the constitution was adopted in 1818).

^[70]Schuman, supra note 94, at 1209 (comparing Saylor v. Hall, 497 S.W.2d 218 (Ky. 1973) (cause of action developed over time), with Carney v. Moody, 646 S.W.2d 40 (Ky. 1983), overruled by Perkins v. Northeastern Log Homes, 808 S.W.2d 809 (Ky. 1991) (cause of action when Kentucky constitution adopted)).

^[71]See David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197, 1217 (1992); Neher v. Chartier, 879 P.2d 156, 161 (Or. 1994) (recognizing an abandonment of the distinction between a statutory and common law claim).

^[72]Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996, 1007 (Ala. 1982) (Jones, J., concurring).

^[73] See also Pinnick v. Cleary, 271 N.E.2d 592 (Mass. 1971) (remedies clause preserves procedural rights); Johnson v. Higgins, 60 Ky. (3 Met.) 566 (1861) (remedies clause relates only to the judiciary, not the legislature); Commonwealth v. Werner, 280 S.W.2d 214 (Ky. 1955) (applying the remedies clause to the legislature as well as the judiciary). Professor Schuman concludes that “history more logically supports a ‘substantive/procedural’ distinction than a ‘legislative/judicial’ one.” 65 Temp. L. Rev. 1197, 1203.

^[74]Harrell v. Total Health Care, Inc., 781 S.W.2d 58 (Mo. 1989); State ex rel. Cardinal Glennon Memorial Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. 1979); Adams v. Children’s Mercy Hosp., 832 S.W.2d 898, 905 (Mo. 1992).

^[75]See Pickett v. Matthews, 192 So. 261, 264 (Ala. 1939) (“Undoubtedly the right ot the remedy must remain and cannot be curtailed after the injury has occurred and right of action vested, regardless of the source of the duty which was breached, provided it remained in existence when the breach occurred.”); Harrison v. Schrader, 569 S.W.2d 822, 827 (Tenn. 1978) (guarantee only applies to “such injuries as constitute violations of established law of which the courts can properly take cognizance.”). Justice Shores criticizes this approach as providing no additional protection than that already provided by the ex post facto prohibition. Fireman’s Fund Am. Ins. Co. v. Coleman, 394 So.2d 334, 351 (Ala. 1981) (Shores, J., concurring).

^[76]See Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 454 (Minn. 1988) (statute of repose for manufacturer of improvement to real property upheld because suit still available against owner and worker’s compensation benefits available); Noonan v. City of Portland, 88 P.2d 808, 821 (Or. 1938) (remedy clause not violated because, though city is immune, suit still available against negligent officials and abutting property owner), overruled by Smothers v. Gresham Transfer, Inc., 23 P.3d 333, 353 (Or. 2001).

^[77]Lamb v. Wedgewood South Corp., 302 S.E.2d 868, 882 (N.C. 1983).

^[78]Crier v. Whitecloud, 496 So.2d 305, 309-310 (La. 1986). In Idaho the remedies clause “merely admonishes the Idaho courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law.” Hawley v. Green, 788 P.2d 1321, 1324 (Idaho 1990). See also O’Quinn v. Walt Disney Productions, Inc., 493 P.2d 344, 346 (Colo. 1972) (The remedies clause “simply provides that if a right does accrue under the law, the courts will be available to effectuate that right.”); Langevin v. City of Biddeford, 481 A.2d 495, 497 n.2 (Me. 1984) (stating that the remedies clause does not create a fundamental right, but rather states a general principle); Black v. Solmitz, 409 A.2d 645, 635 (Me. 1979) (citing the remedies clause as a general principle); Ruth A. Mickelsen, The Use and Interpretation of Article I, Section Eight of the Minnesota Constitution 1861-1984, 10 Wm. Mitchell L. Rev. 667, 675-80 (1984) (discussing nineteenth and early twentieth-century Minnesota cases). Thus in Garing v. Fraser, 76 Me. 37 (Me. 1884), the Court explained: “To be sure, it is a general rule of the common law and it has been substantially engrafted into . . . our constitution. . . . But the law has more than one idea. And this principle however sound must be understood with such qualifications and limitations as other principles of law equally sound and important impose upon it.”

^[79]See generally Harold Levinson, Interpreting State Constitutions by Resort to the Record, 6 Fla. St. U. L. Rev. 567 (1978).

^[80]Springer v. Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J., dissenting). See Vreeland v. Byrne, 370 A.2d 825, 831-32 (N.J. 1977); James Gray Pope, An Approach to State Constitutional Interpretation, 24 Rutgers L.J. 985 (1993).

In fairness, the right to a remedy was simply not one of the core freedoms for which the revolution was fought. The eighteen volumes thus far published of the comprehensive The Documentary History of the Ratification of the Constitution include only two letters from one anonymous pamphletter that discuss the issue at all. An Additional Number of Letters from the Federal Farmer to the Republican; Leading to a Fair Examination of the System of Government, Proposed by the Late Convention; and to Several Essential and Necessary Alterations in It; and Calculated to Illustrate and support the Principles and Positions Laid Down in the Preceding Letters, 17 The Documentary History of the Ratification of the Constitution: Commentaries on the Constitution: Public and Private 265 (John P. Kaminski and Gaspare J.Saladino, eds.(1995).The pamphlet appeared sometime before May 2, 1788, when its publication was announced in New York Journal and New York Packet. Id.

One letter mentioned that “having free recourse to the laws” was a “natural and unalienable” right “of which even the people cannot deprive individuals.” Id. at 273-74. A second letter argued for the explicit protection of the right to a remedy in the federal constitution. While by “long custom, by magna charta, bills of rights &c.,” the people had become “entitled to obtain right and justice freely and without delay” in the state courts, the federal courts were new and had no such tradition. Id. at 347 (Letter XVI, January 20, 1788).

^[81]Victor E. Schwartz, Mark A. Behrens, Leah Lorber, Tort Reform Past, Present and Future: Solving Old Problems and Dealing with the “New Style” Litigation, 27 Wm. Mitchell L. Rev. 237, 252 (2000).

^[82]See Note, Constitutional Guarantees of a Certain Remedy, 49 Iowa L. Rev. 1202, 1205 (1964) and cases at n.18; Lucas v. Bishop, 273 S.W.2d 397, 399 (Ark. 1954) (remedies clause does not allow the court to transgress the division of powers to create a means of redress for an injury); Cason v. Baskin, 20 So.2d 243, 250 (Fla. 1945) (en banc) (“The words ‘for any injury *** [he] shall have remedy, by due course of law’ do not mean that strictly legislative power is delegated to the courts.”); Simons v. Kidd, 38 N.W.2d 883, 886 (S.D. 1949) (remedies clause does not allow the judicial usurpation of legislative powers). But see State ex rel. Watkins v. Fernandez, 143 So. 638, 641 (1932) (“In a changing world marked by the ebb and flow of social and economic shifts, new conditions constantly arise which make it necessary, that no right be without a remedy, to the extend the old and tried remedies. It is the function of the courts to do this.” (emphasis added)). In 1989, the Montana Supreme Court overruled three decisions less than ten years old to hold:

Montana’s remedy clause seeks to guarantee equal access to courts to obtain remedies for injuries as provided by governing law. It does not, however, impart a definition of what the law considers a remedy or full legal redress. Nor does it empower this court to exclude the legislature from defining what are legal injuries.

Meech v. Hillhaven West, Inc., 776 P.2d 488, 507 (Mont. 1989), overruling Corrigan v. Janney, 626 P.2d 838 (Mont. 1981); White v. State, 661 P.2d 1272 (Mont. 1983); and Pfost v. State, 713 P.2d 495 (Mont.1985).

^[83]Fireman’s Fund American Ins. Co. v. Coleman, 394 So.2d 334, 351 (Ala. 1980) (Shores, J., concurring).

^[84]1 William Blackstone, Commentaries *39, *41.

^[85]Blackstone wrote in reaction to legal changes wrought by the incipient Industrial Revolution. As one commentator as concluded:

Blackstone saw the inadequacies of the common law as arising from alterations to its original form. For him, the study of history might make it possible to bring such deviations back into congruence with the common law’s initial perfect state.

Christian F. Southwick, Note, Unprecedented: The Eighth Circuit Repaves Antiquas Vias with a New Constitutional Doctrine, 21 Rev. Litig. 191, 246 (2002) (citing Daniel J. Boorstin, The Mysterious Science of Law 27, 68 (1941)).

^[86]Christian F. Southwick, Note, Unprecedented: The Eighth Circuit Repaves Antiquas Vias with a New Constitutional Doctrine, 21 Rev. Litig. 191, 253 (2002).

^[87]S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).

^[88]See John M. Walker, Jr., Judicial Tendencies in Statutory Construction: Differing Views on the Role of the Judge, 58 N.Y.U. Ann. Surv. Am. L. 203, 207-09 (2001); Kaye, supra note 67, at 728, 730-32.

^[89]See, e.g., Arthur E. Sutherland, The Law at Harvard 162-205 (Cambridge: Belknap Press 1967). Cf. Grant Gilmore, The Ages of American Law 42 (New Haven: Yale University Press 1977) (“Langdell seems to have been an essentially stupid man who, early in his life hit on one great idea to which, thereafter, he clung with all the tenacity of a genius.”).

^[90]See, e.g., Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1, 8-9 (1995).

^[91]Victor E. Schwartz, Mark A. Behrens, Leah Lorber, Tort Reform Past, Present, and Future: Solving old Problems and dealing with the “New Style” Litigation, 27 Wm. Mitchell L. Rev. 237, 240 (2000).

^[92]Fireman’s Fund American Ins. Co. v. Coleman, 394 So.2d 334, 352 (Ala. 1980) (Shores, J., concurring) (noting that legislature amended Art. IV, s 82 of the Alabama Constitution to authorize adoption of arbitration statutes in Alabama). Constitutional Initiative No. 30, approved by the electorate Nov. 4, 1986, amended the Montana Constitution Article II section 16 to read as follows:

(1) Courts of justice shall be open to every person, and speedy remedy afforded for injury of person, property, or character. Right and justice shall be administered without sale, denial, or delay.

(2) No person shall be deprived of legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen's Compensation Laws of this state.

(3) This section shall not be construed as a limitation upon the authority of the legislature to enact statutes establishing, limiting, modifying, or abolishing remedies, claims for relief, damages, or allocations of responsibility for damages in any civil proceeding; except that any express dollar limits on compensatory damages for actual economic loss for bodily injury must be approved by a 2/3 vote of each house of the legislature.

State ex rel. Montana Citizens for the Preservation of Citizens’ Rights v. Waltermire, 738 P.2d 1255, 1257 (Mont. 1987). However, the amendment failed because of defects in presentation to the electors. Id. at 1264.

^[93]E.g., Small Business Liability Reform Act of 2001, S. 865, 107^th Cong. § 2.04 (2001); see also Marcia Coyle, In Washington, Old Fights are New Again: Onlookers Recall 90's Tort Reform Effort, The National Law Journal (Nov. 18, 2002), available at <http://www.nlj.com/special/111802tort.shtml> (last visited Nov. 26, 2002).

^[94]David Crockett, Narrative of the Life of David Crockett (1), 13 (Philadelphia: Carcy and Hart 1834).

^[95]John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake For. L. Rev. 237, 240 (1991).

^[96]Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of the State Constitutions, 74 Or. L. Rev. 1279, 1316 (1995). Schuman agreed with this approach in his early work, but rejected it later. Compare Schuman, supra note 42, at 67-68, with The Right to a Remedy, 65 Temp. L. Rev. 1197, 1203, 1222 (1992).

^[97]John H. Bauman, Comment, Implied Causes of Action in State Courts, 30 Stan. L. Rev. 1243, 1254-56 (1978).

^[98]See R.I. Const. art. I, _ 17.

^[99]Jennifer Friesen, 1 State Constitutional Law: Litigating Individual Rights, Claims, and Defenses _ 6-7(b) (3rd ed. 2000). See Federated Publications, Inc. v. Kurtz, 615 P.2d 440, 445-47 (Wash. 1980) (applying open courts provision to pretrial proceedings, with some qualifications).

^[100]

^[101]See Jennifer Friesen, 1 State Constitutional Law: Litigating Individual Rights, Claims, and Defenses _ 6-7(a) (3rd ed. 2000). ); see Griffin Industries, Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 354 (Tex. 1996) (“If a lawyer is unable or unwilling to pay out-of-pocket costs, an indigent’s right to access to the courts would be at an end.”). But see Doe v. State, 579 A.2d 37, 46-47 (Conn. 1990) (open courts provision does not require the state to pay indigents’ attorney’s fees in civil cases); Smith v. Department of Health and Rehabilitative Servs., 573 So.2d 320, 322-24 (Fla. 1991) (finding a statutory, but not constitutional right to free transcripts for indigents). For an extreme view, see Judith Anne Bass, Article I, Section 21: Access to Courts in Florida, 5 Fla. St. U. L. Rev. 871 (1977).

^[102]John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake For. L. Rev. 237, 246-47 (1991).

^[103]Associated Press, Topeka Capital Journal, High Court Oks Audio of Arguments (Dec. 10, 2000), at <http://quest.cjonline.com/stories/121000/sup_audio.shtml> (last visited Nov. 26, 2002).

^[104]Susan Abrams, Problems of Contemporaneous Construction in State Constitutional Interpretation, 38 Brandeis L.J. 613, 613 (2000).

^[105]1 William Blackstone, Commentaries *129-141.

^[106]Friesen says it’s arguable that wrongful death and other such causes of action are not person, property, or reputation. Jennifer Friesen, 1 State Constitutional Law: Litigating Individual Rights, Claims, and Defenses _ 6-2(c), n.30 (3rd ed. 2000). She cites Kilminster v. Day Management Corp., 919 P.2d 474, 479 (Or. 1996) (holding that remedies clause is not violated, as claimants had no cause of action under common law).

^[107]Maine Med. Ctr. v. Cote, 577 A.2d 1173, 1176 (Me. 1990).

---

[1]I would like to thank Jennifer Smith and Brandy Matthews for their help in writing this speech.

[2] U.S. Const. amend. I-X.

[3] William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489, 502 (1977).

[4]Id. at 491.

[5]Chapter 29 of the 1225 version of Magna Carta stated:

No freeman shall be taken or imprisoned or disseised of any freehold, or liberties, or free customs, or outlawed, or banished, or in any other way destroyed, nor will we go upon him, nor send up on him, except by the legal judgment of his peers or by the law of the land. To no one will we sell, to no one will we deny, or delay right or justice.

William F. Swindler, Magna Carta: Legend and Legacy 316-17 (1965).

As Swindler explains in this provision, the barons, “for themselves and their tenants, . . . sought protection against unreasonable exploitation of the instruments by which they could obtain their day in the royal courts.” Id.

[6]See, e.g., A.E. Dick Howard, The Road From Runnymeade: Magna Carta and Constitutionalism in America, 6-8 (1968).

[7] Ala. Const. art. I, § 13; Ariz. Const. art. II, § 11; Ark. Const. art. II, § 13; Colo. Const. art. II, § 6; Conn. Const. art. I, § 10; Del. Const. art. I, § 9; Fla. Const. art. I, § 21; Ga. Const. art. I, § 1 para. 12; Idaho Const. art. I, § 18; Ill. Const. art. I, § 12; Ind. Const. art. I, § 12; Kan. Const. B. of R., § 18; Ky. Const. § 14; La. Const. art. I, § 22; Me. Const. art. I, § 13; Md. Const. Decl. of Rights, art. 19; Mass. Const. pt. 1, § 11; Minn. Const. art. 1 § 8; Miss. Const. art. III, § 24; Mo. Const. art. I, § 14; Mont. Const. art. II, § 16; Neb. Const. art. 1 § 13; N.H. Const. pt. I, art. 14; N.C. Const. art. I, § 18; N.D. Const. art. I, § 9; Ohio Const. art. I, § 16; Okla. Const. art. II, § 6; Or. Const. art. I, § 10; Pa. Const. art. I, § 11; R.I. Const. art. I, § 5; S.C. Const. art. I, § 9; S.D. Const. art. VI, § 20; Tenn. Const. art. I, § 17; Tex. Const. art. I, § 13; Utah Const. art. I, § 11; Vt. Const. ch. I, art. 4; Wash. Const. art. I, § 10; W. Va. Const. art. III, § 17; Wis. Const. art. I, § 9; Wyo. Const. art. I, § 8.

[8]Professor Jennifer Friesen has counted twenty-seven state constitutions that require courts to be open, thirty-six that require justice to be administered promptly, twenty-seven that require justice to be administered without purchase or sale, thirty-four that require justice to be granted completely and/or without denial, and eleven that require justice to be delivered freely. Additionally, thirty-five states provide a right to a remedy, of which twenty-one require the remedy to be by due process or due course of law. Twenty-one states make the remedy available for injury or wrong to person, property or reputation, thirteen provide it for injury to person, property or character, and nine states extend it to injury or wrong to goods. Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims and Defenses, app. 6 at 6-65 to -67 (3d ed. 2000), adapted from Ronald K.L. Collins, Bills and Declarations of Rights Digest, in The American Bench: Judges of the Nation 2511-13 (1985).

[9]Ark. Const. art. II, § 13; Ill. Const. art. I, § 12; Me. Const. art. I, § 13; Md. Const. Decl. of Rights, art. 19; Mass. Const. pt. 1, § 11; Minn. Const. art. 1 § 8; N.H. Const. pt. I, art. 14; R.I. Const. art. I, § 5; Vt. Const. ch. I, art. 4; Wis. Const. art. I, § 9.

[10] Ala. Const. art. I, § 13; Ariz. Const. art. II, § 11; Colo. Const. art. II, § 6; Conn. Const. art. I, § 10; Del. Const. art. I, § 9; Fla. Const. art. I, § 21; Idaho Const. art. I, § 18; Ind. Const. art. I, § 12; Ky. Const. § 14; La. Const. art. I, § 22; Miss. Const. art. III, § 24; Mo. Const. art. I, § 14; Mont. Const. art. II, § 16; Neb. Const. art. 1 § 13; N.C. Const. art. I, § 18; N.D. Const. art. I, § 9; Ohio Const. art. I, § 16; Okla. Const. art. II, § 6; Or. Const. art. I, § 10; Pa. Const. art. I, § 11; S.C. Const. art. I, § 9; S.D. Const. art. I, § 11; Tenn. Const. art. I, § 17; Tex. Const. art. I, § 13; Utah Const. art. I, § 11; Wash. Const. art. I, § 10; W. Va. Const. art. III, § 17; Wyo. Const. art. I, § 8.

[11]Kenyon v. Hammer, 688 P.2d 961, 979 (Ariz. 1984) (three-year limitations provision with absolute bar on medical malpractice claims three years from date of injury); Heath v. Sears, Roebuck & Co., 464 A.2d 288, 295 (N.H. 1983) (twelve-year absolute statute of limitations in products liability claims); Reynolds v. Porter, 760 P.2d 816, 825 (Okla. 1988) (three-year limitations provision without discovery rule in medical malpractice suits).

[12]Strahler v. St. Luke’s Hosp., 706 S.W.2d 7, 11-12 (Mo. 1986); Mominee v. Scherbarth, 503 N.E.2d 717, 722 (Ohio 1986) (limitations tolled in medical malpractice suits only for minors under ten years of age); Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983) (limitations tolled in medical malpractice suits only for minors under eight years of age).

[13]Jackson v. Mannesmann Demag Corp., 435 So.2d 725, 729 (Ala. 1983) ( seven year statute of repose for claims against architects and builders); Overland Constr. Co. v. Scales, 369 So.2d 572, 575 (Fla. 1979) (twelve year statute of repose for claims against architects and builders); Daugaard v. Baltic, 349 N.W.2d 419, 426-27 (S.D. 1984) (six year statute of repose for claims against architects and builders); Phillips v. ABC Builders, Inc., 611 P.2d 821, 831 (Wyo. 1980) (ten year statute of repose for claims against architects and builders).

[14]Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996, 1007 (Ala. 1982) (ten year statute of repose).

[15]Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 817 (Ky. 1991) (five year statute of repose for claims against suppliers, manufacturers and materialmen).

[16]Hanson v. Williams County, 389 N.W.2d 319, 328 (N.D. 1986) (ten year, date-of-use statute of repose for products liability claims); Berry v. Beech Aircraft Corp., 717 P.2d 670, 687 (Utah 1985) (six-year statute of repose for products liability claims).

[17]Schirmer v. Homestake Mining Co., 882 P.2d 11, 14 (N.M. 1994) (statute barring worker’s compensation unless disability or death occurs within ten years of the last day of employment).

[18]Caruso v. Aluminum Co. of Am., 473 N.E.2d 818, 821 (Ohio 1984) (eight-year limitation on claims involving silicosis-related death).

[19]Olien v. City of Sioux Falls, 393 N.W.2d 286, 291 (S.D. 1986) (sovereign immunity for municipalities in their proprietary capacity of constructing, maintaining and operating parks); Laney v. Fairview City, No. 981729, 2002 Utah LEXIS 107 (Utah Aug. 9, 2002).

[20]Boswell v. Phoenix Newspapers, Inc., 730 P.2d 186, 196 (Ariz. 1986) (defamation damages limited to special damages unless a plaintiff could prove malice); Hanson v. Krehbiel, 75 P. 1041, 1042-44 (Kan. 1904) (same); Madison v. Yunker, 589 P.2d 126, 130-31 (Mont. 1978) (same).

[21]Ludwig v. Johnson, 49 S.W.2d 347, 351 (Ky. 1932); Primes v. Tyler, 331 N.E.2d 723, 729 (Ohio 1975); Stewart v. Houk, 271 P. 998, 999 (Or. 1928).

[22]Lucas v. U.S., 757 S.W.2d 687, 691 (Tex. 1988) (paralyzed child’s damages limited to $500,000).

[23]State ex rel. Cardinal Glennon Memorial Hosp. v. Gaertner, 583 S.W.2d 107, 110 (Mo. 1979); Mattos v. Thompson, 421 A.2d 190, 196 (Penn. 1980) (statute required arbitration in every case where health care providers were defendants).

[24]Phoenix Newspapers v. Superior Court, 418 P.2d 594, 597 (Ariz. 1966); In re Edens, 226 S.E.2d 5, 14 (N.C. 1976); KFGO Radio v. Rothe, 298 N.W.2d 505, 511 (N.D. 1980); Oregonian Publishing Co. v. O’Leary, 736 P.2d 173, 178 (Or. 1987); Cohen v. Everett City Council, 535 P.2d 801, 803 (Wash. 1975); State ex rel. Herald Mail v. Hamilton, 267 S.E.2d 544, 548 (W. Va. 1980); State v. Holm, 224 P.2d 500, 508 (Wyo. 1950); Jack B. Harrison, How Open is Open? The Development of the Public Access Doctrine Under State Open Court Provisions, 60 U. Cin. L. Rev. 1307, 1308 (1992) (“The idea of public access to judicial proceedings is rooted in the rich tradition of Anglo-American law.”); Louis F. Hubener, Rights of Privacy in Open Courts — Do They Exist? 2 Emerging Issues St. Const. L. 189, 191-92 (1989) (open court provisions originated as guarantees of legal remedies, not as guarantees of public access to court proceedings).

[25]State el rel. Oregonian Publishing Co. v. Deiz, 613 P.2d 23, 27 (Or. 1980).

[26]Flood v. State, 117 So. 385, 387 (Fla. 1928); Crocker v. Finley, 459 N.E.2d 1346, 1351 (Ill. 1984); Safety Net for Abused Persons v. Segura, 692 So.2d 1038, 1042 (La. 1997) (filing fees may be imposed only for purposes relating to the administration of justice), State ex rel. Davidson v. Gorman, 41 N.W. 948, 950 (Minn. 1889); LeCroy v. Hanlon, 713 S.W.2d 335, 342 (Tex. 1986) (unconstitutional to “pay tax for general welfare programs as a condition to being allowed their right of access to the courts”).

[27]Cent. Appraisal Dist. of Rockwall County v. Lall, 924 S.W.2d 686, 693-94 (Tex. 1996) (only undisputed portion of tax bill may be required to be prepaid as a condition for judicial review); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 450 n.17 (Tex. 1993); State v. Flag-Redfern Oil Co., 852 S.W.2d 480, 485 (Tex. 1993) (state cannot require state mineral lessees to pay disputed royalties before seeking judicial review); Jensen v. State Tax Comm’n, 835 P.2d 965, 969 (Utah 1992) (statute requiring payment of delinquent taxes, interest, and penalties before seeking review of assessment); see North Port Bank v. State Dept. of Revenues, 313 So.2d 683, 687 (Fla. 1975) (statute read liberally so as not to violate open courts by requiring payment of taxes into registry of court or posting bond for such amount ).

[28]Statute of limitations without discovery rule: Owen v. Wilson, 537 S.W.2d 543, 545-46 (Ark. 1976); Crier v. Whitecloud, 496 So2d 395 (La. 1986); Hill v. Fitzgerald, 501 A.2d 27, (Md. 1985); Harrison v. Schraeder, 569 S.W.2d 822 (Tenn. 1978); Diaz v. Westphal, 941 S.W.2d 96, (Tex. 1997) (upholding two-year statute of limitations on medical malpractice claims); Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995).

Limitations running against minors: Main Medical Center v. Cote, 577 A.2d 1173, 1176 (Me. 1990); Estate of McCarthy v. Montana Second Judicial Dist. Court, Silverbow County, 994 P.2d 1090, 1093-95 (Mont. 1999); Dowd v. Rayner, 655 A.2d 679, 682-83 (R.I. 1995).

Statutes of repose: Carter v. Hartenstein, 455 S.W.2d 918, 920-21 (Ark. 1970) (architects and builders); Zapata v. Burns, 542 A.2d 700, 709-11 (Conn. 1988) (architects and engineers); Daily v. New Britain Mach. Co., 512 A.2d 893, 904-06 (Conn. 1986) (manufacturer); Cheswold Volunteer Fire Co. V. Lambertson Constr. Co., 489 A.2d 413, 417-18 (Del. 1984) (architects and builders); Nelms v. Georgian Manor Condominium Ass’n, Inc., 321 S.E.3d 330, 413 (Ga. 1984) (architects, engineers, builders); Love v. Whirlpool Corp., 449 S.E.3d 602 (Ga. 1994) (manufacturer); Twin Falls Clinic & Hosp. Bldg. Corp. v. Hammill, 644 P.2d 341, 346 (Idaho 1982) (architects and builders); Olson v. J.A. Freeman Co., 791 P.2d 1285, 1296-98 (Idaho 1990) (manufacturer); Beecher v. White, 447 N.E.2d 622 (Ind. 1983) (architects and builders); Dague v. Piper Aircraft Co., 418 N.E.2d 207, 212-13 (Ind. 1981) (manufacturer); Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1387 (La. 1978) (architects and builders); Whiting-Turner Contracting Co. v. Coupard, 499 A.2d 178, 189 (Md. 1985) (architects, builders, and engineers); Klein v. Catalano, 437 N.E.2d 514, 522 (Mass. 1982) (architects and builders); Calder v. City of Crystal, 318 N.W.2d 838, 844 (Minn. 1982) (architects and builders); Blaske v. Smith & Entzeroth, 821 S.W.2d 822, 833 (Mo. 1991) (upholding statute of repose for defects in improvements to real property); Reeves v. Ille Elec. Co., 551 P.2d 647, 651 (Mont. 1976) (architects and builders); Spilker v. City of Lincoln, 469 N.W.2d 546, 548-49 (Neb. 1991) (manufacturer); Williams v. Kingery Constr. Co., 404 N.W.2d 32, 34 (Neb. 1987) (professional negligence); Tetterton v. Long Manuf. Co., 332 S.E.2d 67,72-73 (N.C. 1985) (manufacturers); Lamb v. Wedgewood S. Corp., 302 S.E.2d 868, 880-82 (N.C. 1983) (architects and builders); St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 782 P.2d 915, 918-20 (Okla. 1989) (builders and architects); Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715, 721 (Pa. 1978) (architects and builders); Sealey v. Hicks, 788 P.2d 435, 439 (Or. 1989), cert. denied 111 S.Ct. 65 (1990) (upholding products liability statute of repose); Walsh v. Gowing,494 A.2d 543, 547-48 (R.I. 1985) (architects, builders, engineers); Harmon v. Angus R. Jessup Assoc., Inc., 619 S.W.2d 522, 524 (Tenn. 1981) (architects, engineers, builders); Jones v. Five Star Engineering, Inc., 717 S.W.2d 882, 882-83 (Tenn. 1986) (manufacturer); Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 261-63 (Tex. 1994) (architects and engineers); Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 974 P.2d 1194, 1197-1201 (Utah 1999) (builder’s statute of repose); 1519-1525 Lakeview Blvd. Condominium Ass’n v. Apartment Sales Corp., 29 P.3d 1249, 1255 (Wash. 2001) (architects, builders, and engineers); Worden v. Village Homes, 821 P.2d 1291, 1293-95 (Wyo. 1991) (builder, architect, and manufacturer).

Sovereign immunity for proprietary functions: Hardin v. City of DeValls Bluff, 508 S.W.2d 559, 563 (Ark. 1974); Sadler v. New Castle County, 565 A.2d 917, 923-24 (Del. 1989); Carroll v. County of York, 437 A.2d 394, 396 (Pa. 1981); City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997); Randall v. Fairmont City Police Dept., 412 S.E.2d 737, 743-45 (W. Va. 1991).

Statute permitting defamers to retract or avoid liability: Davidson v. Rogers, 574 P.2d 624 (Or. 1978) (statute limiting availability of general damages to cases where retraction was requested and refused).

Statutes capping non-economic damages for medical malpractice damages: Univ. of Miami v. Echarte, 618 So.2d 189, 193-96 (Fla. 1993) (statute providing monetary cap on noneconomic damages when party requests arbitration); Adams v. Children’s Mercy Hosp., 832 S.W.2d 898, 905-06 (Mo. 1992).

Requiring screening by experts before filing medical malpractice claims: Johnson v. St. Vincent Hosp., 404 N.E.2d 585, 595-96 (Ind. 1980); Everett v. Goldman, 359 So.2d 1256, 1268-69 (La. 1978); Irish v. Gimbel, 691 A.2d 664, 672-73 (Me. 1997); Linder v. Smith, 629 P.2d 1187, 1190-91 (Mont. 1981); Prendergrast v. Nelson, 256 N.W.2d 657, 663-65 (Neb. 1977).

Guest statutes: Pickett v. Matthews, 192 So. 261, 264 (Ala. 1939); Roberson v. Roberson, 101 S.W.2d 961, 966 (Ark. 1937); Gallegher v. Davis, 183 A. 620, 626 (Del. 1936); Vogts v. Guerette, 351 P.2d 851 (Colo. 1960); Henry v. Bauder, 518 P.2d 362, 364 (Kan. 1974); Sidle v. Majors, 341 S.E.2d 763, 775 (Ind. 1976); Behrns v. Burke, 229 N.W.2d 86, 88 (S.D. 1975); Perozzi v. Ganiere, 42 P.2d 1009 (Or. 1935).

Closing judicial proceedings to the public: State v. Birdsong, 422 So.2d 1135, 1139 (La. 1982); Virmani v. Presbyterian Health Servs. Corp., 515 S.E.2d 675, 694 (N.C. 1999); State ex rel. Garden State Newspapers, Inc. v. Hoke, 520 S.E.2d 186, 196 (W. Va. 1999).

Closing juvenile proceedings to the public: In re T.R., 556 N.E.2d 439, 450 (Ohio 1990).

Filing fees funding state general revenue: Fox v. Hunt, 619 So.2d 1364, 1367 (Ala. 1993); Harrison, Pepper & Co. v. Willis, 54 Tenn. 35, 49-50 (1871).

Penalties paid before challenged in court: Old Colony R.R. Co. v. Assessors of Boston, 35 N.E.2d 246, 253 (Mass. 1941) (restricting the right to litigate until taxes have been paid does not violate the remedies clause); Heikes v. Clay County, 526 N.W.2d 253, 255 (S.D. 1995) (requiring back tax payment as a condition to recover property sold for unpaid taxes is not unconstitutional).

[29]William C. Koch, Jr., Reopening Tennessee’s Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333, 341 (1997).

[30]John Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake Forest L. Rev. 243, 244 (1991) (“[B]oth [of the major] variations have been expansively and narrowly interpreted.”).

[31]Some commentators have enthused that the history, culture, or genius of a particular state can explain varying interpretations of the state constitutional clauses. See, e.g., Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va. L. Rev. 389 (1998), and authorites cited therein. This is a dubious general proposition, see, e.g., Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1129 (1993), and it seems particularly irrelevant in remedies jurisprudence.

[32]See Koch, Jr., supra note 31, at 437-39

[33]Note, Constitutional Guarantees of a Certain Remedy, 49 Iowa L. Rev. 1202, 120-04 (1964) (“[R]ecords of constitutional conventions which adopted certain-remedy clauses are virtually devoid of any clues as to the intentions of the framers.”).

[34]In many states, the right to a remedy is in the constitution, but there is no indication that it was even discussed by the framers during the full convention: see, e.g., Official Proceedings of the Constitutional Convention of the State of Alabama, May 21st, 1901, to September 3rd, 1901 (1940); The Records of the Arizona Constitutional Convention of 1910 660, 1238 (John S. Goff ed., Supreme Court of Arizona n.d.); Debates and Proceedings of the Convention to form a Constitution for the State of Arkansas 355, 584, 656-57 (J.G. Price 1868); Proceedings of the Constitutional Convention held in Denver, December 20, 1875 to Frame a Constitution for the State of Colorado 89, 142, 376, 486, 523-24 (The Smith-Brooks Press 1907); Journal of the Constitutional Convention of Connecticut 169-70, 445 (Hartford Press 1902); Journal of the Public and Secret Proceedings of the Convention of the People of Georgia 195, 235, 286 (Boughton, Nisbet & Barnes 1861); The Constitutional Debates of 1847 866-67 (Arthur Charles Cole, ed., Illinois State Historical Library 1919); Journal of the Convention of the People of the State of Indiana 186-88, 571, 579, 868, 872 (Austin H. Brown 1851); Debates in the Indiana Convention 299, 1368, 1389, 2067 (Indiana Historical Collections 1850); The Debates, Resolutions, and Other Proceedings of the Convention of Delegates, for the State of Maine 69, 91 (Jeremiah Perley ed., J. Shirley, Printer 1820); Debates of the Maryland Constitutional Convention of 1867 78, 141 (Hepbron & Haydon 1923); Journal of the Convention for Framing a Constitution of Government for the State of Massachusetts 35, 38, 225 (Dutton and Wentworth 1832); Official Report of the Proceedings and Debates of the First Constitutional Convention of North Dakota appendix v. (Tribune, State Printers and Binders 1889); The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 120, 310, 343, 468 (Charles Henry Carey ed., State Printing Dep’t 1926); Journal of the Convention of the State of Tennessee 184, 391-92 (W. Hasell Hunt & Co. Printers 1834).

[35]E.g., Proceedings of the Assembly of the Lower Counties of Delaware 1770-1776, of the Constitutional Convention of 1776, and of the House of Assembly of the Delaware State 784; Proceedings and Debates of the Constitutional Convention of Idaho 372, 2051 (I. W. Hart ed., Caxton Printers, LTD 1912) (provision adopted after delegates substituted “for” in place of “to”); 2 Debates of the Convention to Amend the Constitution of Pennsylvania of 1873, at 734-44 (Harrisburg: Benjamin Singerly, State Printer 1873); 4 Debates 647, 755 (provision “that no law shall limit the amount of damages recoverable, and where an injury caused by negligence or misconduct results in death the action shall survive” struck from remedies clause because already incorporated in constitutional restrictions on legislative branch).

[36]In Lousiana, the 1974 Constitutional Convention rejected this proposed addition to the state’s existing remedies clause: “Neither the state, its political subdivisions, nor any private person shall be immune from suit and liability.” From this, the Louisiana Supreme Court concluded that the framers “did not intend to limit the legislature’s ability to restrict causes of action or to bar the legislature from creating various areas of statutory immunity from suit.” Crier v. Whitehead, 496 So.2d 305, 309-10 (La. 1986).

In Ohio, the right to a remedy was included in the 1802 Constitution. Art. VIII, § 7. When it was omitted from the bill of rights Committee’s draft at the 1851 convention, delegate Rufus Ranney moved from the floor to restore it. This exchange then occurred:

Mr. Ranney said he perceived that the [Standing] Committee [on the Preamble and the Bill of Rights] had left out of this report a number of articles in the old bill of rights. He had copied one of them, and would move its adoption as an additional section ¼

¼

¼ Mr. Hitchcock of Geauga, had no objection, to the amendment, if it could be carried out. Justice should certainly be administered without denial or delay, but delay could not possibly be avoided in the Courts, unless they could have a gag-law there, as well as in this body¼The section was agreed to.

Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Ohio 337 (1851)), quoted in In re T.R. v. Solove, 556 N.E.2d 439, 447 n.7 (Ohio 1990). For a history of the remedies clause in the Ohio Constitution, see E.W. Scripps Co. v. Fulton, 125 N.E.2d 896, 905-07 (Ohio Ct. App. 1955) (holding that the open courts clause gives a public right of access to the courts).

There is a possible suggestion from Minnesota that the guarantee was more popular with Republicans than Democrats in the 1850s. The Republican and Democratic delegates convened apart from one another and their debates were separately published. Compare Debates and Proceedings of the Constitutional Convention for the Territory of Minnesota 105 (St. Paul 1858) (Republican), with The Debates and Proceedings of the Minnesota Constitutional Convention 203-04, 652 (Earle S. Goodrich 1857) (Democratic).

The Committee on the Bill of Rights of the 1868 Mississippi Convention, initially recommended this provision: “All persons for injuries suffered in person, reputation, or property, shall have their remedy by due course of law.” Journal of the Proceedings of the Constitutional Convention of the State of Mississippi 84 (E. Stafford 1871). The following week, the Committee recommended the following addition: “All courts shall be open, and every person, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and justice administered without denial or delay.” Id. at 131. The next week, the Committee proposed another draft, omitting any type of remedies provision. Id. at 155-57. Nothing in the record indicates why any of these actions were taken. Thus the 1868 Constitution contained no remedies clause, although it was present in the 1850 Constitution.

[37]Kentucky’s remedies clause was part of the Bill of Rights in its first constitution of 1792. New remedy-related provisions (Sections 54 and 241) were added during the Constitutional Convention of 1891. See Proceedings and Debates of the Constitutional Convention of 1890 444 (1890). The Kentucky Supreme Court has referred to the three sections of its constitution as the “open courts” provisions. Thomas P. Lewis, Jural Rights Under Kentucky’s Constitution: Realities Grounded in Myth, 80 K.Y. L.J. 953, 953-54 (1992).

[38]“The guarantee of open courts”: Clouse v. State, 16 P.3d 757, 769 (Ariz. 2001); Moses v. Diocese of Colorado, 863 P.2d 310, 314 (Colo. 1993); Helman v. State, 784 A.2d 1058, 1070 (Del. 2001); Kirkland v. Blaine County Med. Ctr., 4 P.3d 1115, 1119 (Idaho 2000); Boggs v. Tri-State Radiology, 730 N.E.2d 692, 695 (Ind. 2000); Boykins v. Housing Authority of Louisville, 842 S.W.2d 547, 529 (Ky. 1992); Crier v. Whitehead, 496 So.2d 305 (La. 1986); Maine Med. Ctr. v. Cote, 577 A.2d 1173, 1176 (Me. 1996); Adams v. Children’s Mercy Hosp., 832 S.W.2d 898, 905 (Mo. 1992); MacPheat v. Schaut, 41 P.3d 895, 898 (Mont. 2002); Givens v. Anchor Packing, Inc., 466 N.W.2d 771, 778 (Neb. 1991); Virmani v. Presbyterian Health Servs. Corp., 515 S.E.2d 675, 692 (N.C. 1999); Federal Land Bank v. Zeibarth, 520 N.W.2d 51, 56 (N.D. 1994); Morris v. Savoy, 576 N.E.2d 765, 783 (Ohio 1991) (Sweeney, J., concurring and dissenting in part); State ex rel. Sports Mgmt. News v. Nachtigal, 921 P.2d 1304, 1307 n.6 (Or. 1996); Commonwealth v. Hayes, 414 A.2d 318, 322 (Pa. 1980); Green v. Siegel, Barnett & Schutz, 557 N.W.2d 396, 399 (S.D. 1996); Ferguson v. Ram Enters., Inc., 900 S.W.2d 19, 21 (Tenn. 1995); Lucas v. United States, 757 S.W.2d 687, 690 (Tex. 1988); Cruz v. Wright, 765 P.2d 869, 869 (Utah 1988).

“Access to the courts”: Sigman v. Seafood Ltd. Partnership I, 817 P.2d 527, 533 (Colo. 1991); Spencer v. Fla. Dep’t of Corrections, 823 So.2d 752, 754 (Fla. 2002); Osmunson v. State, 17 P.3d 236, 238 (Idaho 2000); Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1111 (Ill. 1997); Fann v. McGuffy, 534 S.W.2d 770, 776 (Ky. 1975); Whitnell v. Silverman, 686 So.2d 23, 25 (La. 1996); Murphy v. Edmonds, 601 A.2d 102, 113 (Md. 1992); Fischer v. State Highway Comm’n, 948 S.W.2d 607, 611 (Mo. 1997); Kloss v. Edward D. Jones & Co., 54 P.3d 1, 8 (Mont. 2002); State ex rel. Tyler v. Douglass County Dist. Court, 580 N.W.2d 95, 98 (Neb. 1998); Town of Nottingham v. Newman, 785 A.2d 891, 895 (N.H. 2001); Mayer v. Bristow, 740 N.E.2d 656, 664 (Ohio. 2000); Kennedy v. Cumberland Engineering Co., 417 A.2d 195, 197 (R.I. 1984).

“Remedy”: Helman v. State, 784 A.2d 1058, 1070 (Del. 2001); McIntosh v. Melroe Co., 729 N.E.2d 972, 975 (Ind. 2000); Mohundro v. Alcorn County, 675 So.2d 848, 852 (Miss. 1996); Meech v. Millhaven W., Inc., 776 P.2d 488, 497 (Mont. 1989); Jensen v. Whitlow, 51 P.3d 599, 601 (Or. 2002); Kennedy v. Cumberland Engineering Co., 417 A.2d 195, 201 (R.I. 1984) (Murray, J., dissenting).

“Right to courts”: Huff v. State, 549 S.E.2d 370 (Ga. 2001)

“Certain remedy”: Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1111 (Ill. 1997); Fischer v. State Highway Comm’n, 948 S.W.2d 607, 611 (Mo. 1997)

“Guaranteed remedy”: In re Abbott, 653 A.2d 1113, 1116 (N.H. 1995); Pritchard v. Portland, 796 P.2d 1184, 1187 (Or. 1990).

“Right to remedy”: Baugher v. Beaver Constr. Co., 791 So.2d 932, 934 (Ala. 2000); McAlister v. Schick, 588 N.E.2d 1151, 1157 (Ill. 1992); Appeal of Wimtle, 781 A.2d 995, 997 (N.H. 2001); Holeton v. Crouse Cartage Co., 748 N.E.2d 1111, 1132 (Ohio 2001) (Cook, J., dissenting)

“Remedy by due course of law”: McIntosh v. Melroe Co., 729 N.E.2d 972, 976 (Ind. 2000)

Some states call it by a mix of these names: Compare Moses v. Diocese of Colorado, 863 P.2d 310, 314 (Colo. 1993) (open courts), with Sigman v. Seafood Ltd. Partnership I, 817 P.2d 527, 533 (Colo. 1991) (access to courts); see Helman v. State, 784 A.2d 1058, 1070 (Del. 2001) (open courts and remedy); compare Kirkland v. Blaine County Med. Ctr., 4 P.3d 1115, 1119 (Idaho 2000) (“open courts”), with Osmunson v. State, 17 P.3d 236, 238 (Idaho 2000) (“access to the courts”); compare McAlister v. Schick, 588 N.E.2d 1151, 1157 (Ill. 1992), with Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1111 (Ill. 1997) (“certain remedy” and “access to courts”); compare McIntosh v. Melroe Co., 729 N.E.2d 972, 975-76 (Ind. 2000) (“remedies”, “open courts”, and “remedy by due course of law”), with Boggs v. Tri-State Radiology, 730 N.E.2d 692, 695 (Ind. 2000) (“open courts”); compare Boykins v. Housing Authority of Louisville, 842 S.W.2d 547, 529 (Ky. 1992) (“open courts”), with Fann v. McGuffy, 534 S.W.2d 770, 776 (Ky. 1975) (“access to the courts”); compare Boykins v. Housing Authority of Louisville, 842 S.W.2d 547, 529 (Ky. 1992) (“open courts”), with Fann v. McGuffy, 534 S.W.2d 770, 776 (Ky. 1975) (“access to the courts”); compare Asbestos Plaintiffs v. Borden, Inc., 630 So.2d 1310, 1311 (La. 1994), with Whitnell v. Silverman, 686 So.2d 23, 25 (La. 1996); compare Fischer v. State Highway Comm’n, 948 S.W.2d 607, 611 (Mo. 1997) (“access to the courts” and “certain remedy”), with Adams v. Children’s Mercy Hosp., 832 S.W.2d 898, 905 (Mo. 1992) (“open courts”); compare MacPheat v. Schaut, 41 P.3d 895, 898 (Mont. 2002) (“open courts”), with Kloss v. Edward D. Jones & Co., 54 P.3d 1, 8 (Mont. 2002) (“access to courts”), and Meech v. Millhaven W., Inc., 776 P.2d 488, 497 (Mont. 1989) (“remedy”); compare Givens v. Anchor Packing, Inc., 466 N.W.2d 771, 778 (Neb. 1991) (“open courts”), with .State ex rel. Tyler v. Douglass County Dist. Court, 580 N.W.2d 95, 98 (Neb. 1998) (“acess to the courts”); compare Town of Nottingham v. Newman, 785 A.2d 891, 895 (N.H. 2001) (“access to the courts”), with In re Abbott, 653 A.2d 1113, 1116 (N.H. 1995) (“guaranteed remedy”), and Appeal of Wimtle, 781 A.2d 995, 997 (N.H. 2001) (“right to remedy”); compare Morris v. Savoy, 576 N.E.2d 765, 783 (Ohio 1991) (Sweeney, J., concurring and dissenting in part) (“open courts”), with Mayer v. Bristow, 740 N.E.2d 656, 664 (Ohio. 2000) (“access to courts”), and Holeton v. Crouse Cartage Co., 748 N.E.2d 1111, 1132 (Ohio 2001) (Cook, J., dissenting) (“right to remedy”); compare State ex rel. Sports Mgmt. News v. Nachtigal, 921 P.2d 1304, 1307 n.6 (Or. 1996) (“open courts”), with Jensen v. Whitlow, 51 P.3d 599, 601 (Or. 2002) (“remedy”), and Pritchard v. Portland, 796 P.2d 1184, 1187 (Or. 1990) (“guaranteed remedy”); compare Kennedy v. Cumberland Engineering Co., 417 A.2d 195, 197 (R.I. 1984) (“access to the courts”), with id. 201 (Murray, J., dissenting) (“remedy”).

[39]See Silver v. Silver, 280 U.S. 117, 122 (1929) (concluding that the “Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by common law, to attain a permissible legislative object”); see also Franklin v. Mazda Motor Corp., 704 F. Supp. 1325, 1338 (D. Md. 1989) (concluding that a statute imposing limits on damages in personal injury cases did not violate the remedies clause on due process grounds because it was reasonably related to a legitimate legislative goal); Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims and Defenses, § 6-2, n. 1 (3d ed. 2000) (“[I]t is unclear, outside the criminal context, to what extent the federal Constitution requires the states to assure meaningful access to courts to enforce ordinary civil claims.”) (citing Laurence H. Tribe, American Constitutional Law, 753 (2d ed. 1988); see also Janice Sue Wang, State Constitutional Remedy Provisions and Article I, Section 10 of the Washington State Constitution: The Possibility of Greater Judicial Protection of Established Tort Causes of Action and Remedies, 64 Wash. L. Rev. 203 (1989) (“[T]he [Supreme] Court has construed, somewhat ambivalently, a federal constitutional right to a remedy in the jurisdictional sense: access to courts in order to pursue a legal remedy.”).

Since Silver, the Court has passed up opportunities to incorporate the right to a remedy into due process. For example, in Duke Power Co. v. Carolina Envtl. Group, Inc., the Supreme Court rejected a federal due process challenge to the Price-Anderson Act, which sets a $560 million cap on liability for private nuclear power plant accidents. 438 U.S. 59 (1978). After holding that the provision was rationally related to a legitimate government purpose, the Court turned to the argument that the cap “fail[ed] to provide those injured by a nuclear accident with a satisfactory quid pro quo for the common law rights of recovery which the Act abrogates.” Id. at 87-88. The court noted that “it is not at all clear that the Due Process Clause in fact requires that a legislatively enacted compensation scheme either duplicate the recovery at common law or provide a reasonable substitute remedy.” Id. Although by footnote the Court cites eight cases either directly rejecting or suggesting a rejection of a federal remedies challenge, it did “not resolve” the issue because it concluded that the Act “provide[d] a reasonably just substitute for the common-law or state tort law remedies it replace[d].” Id. at 88.

The Supreme Court passed up another opportunity in Fein v. Permanente Med. Group. 474 U.S. 892 (1985). In that case, the Supreme Court declined for want of a substantial federal question to review a state supreme court decision upholding non-economic damage caps on medical malpractice awards. Id. at 892. Justice White dissented, stating he would have granted certiorari to consider the question left open in Duke — whether federal due process requires a quid pro quo when a state replaces a common law remedy with a compensation statute. Id. at 893.

[40]As rendered into modern English, Chapter 29 provided:

NO freeman shall be taken or imprisoned or disseised of any freehold, or

liberties, or free customs, or outlawed, or banished, or in any other way

destroyed, nor will we go upon him, nor send upon him, except by the legal

judgment of his peers or by the law of the land. To no one will we sell, to

no one will we deny, or delay right or justice.

William F. Swindler, Magna Carta: Legend and Legacy 316-17 (Indianapolis: Bobbs-Merrill, 1965). The original Latin text can be found at Faith Thompson, The First Century of Magna Carta: Why It Persisted as a Document 111 (New York: Russell & Russell, 1967) .

The motivations for the original guarantee are actually easier to discern than that of our own states’ framers. The barons had little interest in abstract pronouncements of ideal governance; they were after specific language to compel particular action. See William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John 51-52, 120 (Glasgow: J. Maclehose and Sons, 2d ed. 1914). The barons were displeased because the royal courts, which were fast displacing local feudal courts as the preferred forum for dispute resolution, operated on a fee scale, with different charges for particular writs. “The system invited abuse; more expensive writs worked faster than cheaper ones, were more potent, and could achieve a more favorable forum.” David Schuman, Oregon’s Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or. L. Rev. 35, 37 (1986). By eliminating these fees the barons not only alleviated this disparity, but increased the chances that royal courts would recede in importance. If free royal justice were unprofitable, the barons might increase their “market share” and regain the power and prestige of operating successful local courts. See William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John 80-81, 87-90 (Glasgow: J. Maclehose and Sons, 2d ed. 1914) (chronicling the writ system’s role, in conjunction with the conversion of county courts to royal courts, in “diverting the stream of litigation from the barons’ courts to the [royal courts],” and recognizing the Crown’s plan to overthrow the jurisdiction of the baronial courts while also profiting from the rigid writ system).

[41]See Hastings Lyon & Herman Block, Edward Coke: Oracle of the Law 348 (Boston: Houghton Mifflin 1929).

[42]Edward Coke, The Second Part of the Institutes of the Laws of England 45 (New York: William S. Hein Co., 1986)

[43]Smothers v. Gresham Transfer, Inc., 23 P.3d 333, 341, 332 Ore. 83, 96 (2001) (explaining Coke’s view that the second sentence of the Magna Carta evolved into a guarantee involving private relations).

[44]Edward Coke, The Second Part of the Institutes of the Laws of England 55 (New York: William S. Hein Co., 1986).

[45]See supra note 8.

[46]“For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which are vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration.” 1 William Blackstone, Commentaries *124. For example, protection from homicide is an absolute right; an import duty on wool is a relative right. Man’s laws may either permit or forbid relative rights without offending natural law. 1 William Blackstone, Commentaries *42-43, 126.

[47]Id. * 123-24. One good secondary treatise on Blackstone is Blackstone’s Commentaries on the Law, From the Abridged Edition of Wm. Hardcastle Browne Including a Biographical Sketch, Modern Notes, Common Law Maxims and a Glossary of Legal Terms (Bernard C. Gavit, ed., Washington Law Book Co. 1941).

[48]Personal security included the right to life and limb, and, less importantly, to body, health, and reputation. Personal liberty encompassed freedom of movement and freedom from imprisonment without due course of law. Property rights include the free use, enjoyment, and disposal of acquisitions, without interference or diminution except by law. 1 William Blackstone, Commentaries *129-40.

[49]The four main categories of relative rights are the relationships between master and servant, husband and wife, parent and child, and guardian and ward. 3 William Blackstone, Commentaries *23.

[50]1 William Blackstone, Commentaries *140-41.

[51]The other four subordinate rights include the constitution, powers, and privileges of parliament; the limitations of the king’s prerogative; the right to petition the king or either house of parliament for redress of injury; the right to bear arms in self-defense. 1 William Blackstone, Commentaries *141-44.

[52]“Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament; for if once those outworks were demolished, there would be an inlet to all manner of innovation in the body of the law itself.” 1 William Blackstone, Commentaries *142.

[53]3 William Blackstone, Commentaries *116.

[54]3 William Blackstone, Commentaries *109.

[55]1 William Blackstone, Commentaries *141 (“Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject and the law be duly administered therein” to satisfy the subordinate right of “applying to the courts of justice for redress of injuries”).

[56]Dr. Bonham’s case, 77 Eng. Rep. 646, 652 (K.B. 1610) (declaring in dicta “that in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void”). See Douglas W. Vick, The Human Rights Act and the British Constitution, 37 Tex. Int’l L.J. 329, 335 n.43 (2002) (dismissing the influence of Bonham’s dicta on the ability of courts to control acts of parliament, noting that Coke’s view “never took hold,” with “Coke himself seem[ing] to repudiate it” in later writings).

[57]1 William Blackstone, Commentaries *161 (recounting Sir Matthew Hale’s observation). Thus, so long as the English Constitution lasted, the power of parliament would be “absolute and without control.” 1 William Blackstone, Commentaries *162.

[58]One observer notes even Hoffman admits that “Lord Coke was a fervent advocate of parliamentary supremacy, whereas the colonists ended up resisting parliamentary as well as royal authority.” Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L. Rev. 1279, 1301 (1995) (discussing Britain’s perceived interference with American colonial courts prior to the American Revolution, and comparing colonial grievances over royal abuses with the conflict between Coke and the Crown 150 years earlier).