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26 Wake Forest L. Rev. 237 (1991)
Remedies Provisions in State Constitutions and the Proper Role of the State Courts

handle is hein.journals/wflr26 and id is 247 raw text is: WAKE FOREST LAW REVIEW VOLUME 26 1991 NUMBER 2 REMEDIES PROVISIONS IN STATE CONSTITUTIONS AND THE PROPER ROLE OF THE STATE COURTS John H. Bauman* INTRODUCTION Over thirty-five state constitutions contain provisions stating, more or less directly, that the courts of the state should be open to all and provide remedies for injury.1 These provisions are variously called open courts, access to courts, remedy guarantee, or just remedies provi- sions.2 For most of their history these provisions remained in relative ob- scurity.3 In recent years, however, state courts have made more frequent * Professor of Law, South Texas College of Law. B.A. 1975, Pomona College; J.D. 1978, Stanford Law School. 1. See Appendix. The inclusion of the Georgia provision in this list is the most ques- tionable, followed by the Arizona and Washington versions, which do not include any reme- dies provision language. Arizona, however, has other constitutional provisions that limit the power of the legislature to modify common law remedies. See, e.g., ARiZ. CONST. art. XVII, § 6 (The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.). One commentator has suggested that the Washington provision could be used as a remedy guarantee in spite of the lack of specific language to that effect. See Comment, 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). 2. The differences in reference reflect, in part, differences in the wording of the provi- sions, since eleven of them lack the courts shall be open or courts shall be public lan- guage. Different names may also reflect different emphasis by the various state courts. 3. In recent years, the pace of academic commentary has increased. General comments on these sections include: Note, Constitutional Guarantees of a Certain Remedy, 49 IOWA L. REV. 1202 (1964); Note, The Right of Access to Civil Courts Under State Constitutional Law: An Impediment to Modern Reforms, or a Receptacle of Important Substantive and Procedural Rights?, 13 RUTGERS L.J. 399 (1982); Comment, State Constitutions' Remedy Guarantee Provisions Provide More Than Mere 'Lip Service' to Rendering Justice, 16 U. TOL. L. REv. 585 (1985). Some academic commentary on individual state provisions exists: