Jackson v. Dackman Co.: The Legislative Modification of Common Law Tort Remedies Under Article 19 of the Maryland Declaration of Rights

Abstract

In Jackson v. Dackman Co., the Maryland Court of Appeals created a new test for evaluating the constitutionality of legislative modifications of common law tort remedies: to satisfy Article 19 of the Maryland Declaration of Rights, any substitute remedy must be “reasonable” to a majority of the Court. While perhaps an admirably candid statement of what courts really do in these cases, as stated, the Court of Appeals’ test provides no guidance for future cases testing the constitutionality of statutory modifications of common law tort remedies.

In a recent article in the Maryland Law Review, I proposed a new methodology for the interpretation of provisions of state constitutions, based on two premises. First, I argued that familiar theories used to interpret the federal constitution — textualism, originalism, structuralism, and the like — could be repurposed for the interpretation of state constitutions. Second, I argued that none of these theories alone was sufficient to provide a one-size-fits-all, comprehensive interpretive tool. Rather, it is my view that all of these tools, used together, can provide a careful judge with the material to determine the best possible interpretation of a constitutional provision, by which I mean: In my view, a judge must use his or her judgment to develop the best possible interpretation of a constitutional provision that is constrained by a reasonable reading of the constitutional text and informed by the history of that provision’s adoption, subsequent judicial and scholarly interpretation in this and comparable jurisdictions, core moral values, political philosophy, and state as well as American traditions. A judge ought to make use of all possible tools to come to a proper interpretation.

Here, I use the same technique to inform my understanding of Article 19 of the Maryland Declaration of Rights and to propose a better test than the one adopted by the Maryland Court of Appeals in 2011 in Jackson v. Dackman Co.

Keywords: State Constitutions, Common Law Tort Remedies, Procedural Due Process, Statutory Interpretation, Lead Paint, Jurisprudence, Maryland Constitution, Textualism, Originalism, Structuralism, Moral Reasoning