Results from the Laboratories of Democracy: Evaluating the Substantive Open Courts Clause as Found in State Constitutions

Abstract

Scholars continue to debate how well state courts answer the call to be “laboratories of democracy” by interpreting their state constitutions as a source of new and greater rights and liberties. Unlike the federal constitution, forty state constitutions contain an “open courts” or “remedies” clause inspired by language from Magna Carta. The clause requires courts to be open to every person for the redress of any injury. Some states interpret the clause to require only physical court access or basic due process, or what this article calls a Procedural Open Courts Clause. But others interpret the clause to create a judicially protected right to a remedy, or what this article calls a Substantive Open Courts Clause. That interpretation empowers a state’s judiciary to protect existing causes of action from being abolished by the state’s legislature. The right can be an obstacle to state legislatures seeking to create or amend no-fault replacements for tort liabilities, restrict remedies, or limit damage awards.

This article seeks to answer this question: can and should the state Substantive Open Courts Clause be adopted on a national level?

Part One analyzes the Substantive Open Courts Clause in state courts. We look at what is protected and what exceptions exist.

Part Two compares and contrasts the Substantive Open Courts Clause with analogous rights in the U.S. Constitution. We examine whether state courts exercised judicial independence from those federal sources in developing the Substantive Open Courts Clause. Scholars opine that comparable rights could emanate from the federal right of due process of law, the Privileges and Immunities Clause, or the First Amendment’s right to petition the government for a redress of grievances. We examine whether these federal sources could yield a right to a remedy identical in scope to the state Substantive Open Courts Clause.

Part Three weighs the benefits and detriments of implementing a Substantive Open Courts Clause on a national level. In so doing, we ask whether the laboratory of democracy created a right that is ready for advancement to the national stage, or whether the experiment failed.

Keywords: State Constitutions, State Constitutional Law, Constitutional Law, Separation of Powers, Open Courts, Right to a Remedy, Laboratory of Democracy, Tort Reform, Malpractice Reform, Damages, Economic Policy, Law and Economics, Workers' Compensation

JEL Classification: A12, J38, J83, K13, K23, K31, K41, O38, O51, N32