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. Skip over navigation
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Copyright (c) 1989 Washington Law Review
Washington Law Review

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.

JANUARY, 1989

64 Wash. L. Rev. 203

Author

Janice Sue Wang

Excerpt

The Washington Supreme Court declared more than half a century ago that the state constitution lacked a remedy provision. 1 One commentator, however, recently argued that article I, section 10, which provides that "[j]ustice in all cases shall be administered openly, and without unnecessary delay," 2 could be construed as a remedy provision that allows heightened judicial scrutiny of tort legislation. 3 At least thirty-five state constitutions include remedy provisions. 4 Several states interpret remedy provisions as allowing some level of heightened scrutiny of statutes which alter or eliminate a common law or statutory cause of action. 5 In light of the modern trend toward limiting tort recovery in response to the "insurance crisis," 6 the time is ripe for reconsideration whether the abolition and modification of tort actions and remedies merit special judicial scrutiny.

This Comment will consider whether article I, section 10 of the Washington Constitution provides a right to a remedy for tort claims. In doing so, the common law origins of remedy clauses in the United States and their relationship with the drafting of Washington's article I, section 10 will be examined first. Second, although it is beyond the scope of this Comment to examine exhaustively the treatment of remedy provisions in all thirty-five jurisdictions, the three major judicial interpretations that contribute to the heritage of Washington's article I, section 10 will be reviewed. Finally, this Comment will consider the desirability of adopting judicial scrutiny of legislation dealing with remedies.

I. COMMON LAW ORIGINS ...
 
 
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