The Constitutionality Of Declaratory Judgments, 31 Columbia Law Review 561 (1931)
It is not uncommon in the United States for opponents of statutory reform, or even defendants against unwelcome suits, to advance the objection of unconstitutionality. Declaratory judgment statutes have not escaped this custom. Although it will strike an informed student as strange that the procedure for the rendering of declaratory judgments should be attacked as unconstitutional, the fact is that the issue has been raised in a number of American cases, though never in any other country. The special ground asserted has been that the declaratory judgment imposes on the courts powers non-judicial in character and that it requires them to decide cases that are moot or to render advisory opinions, or, in some instances, even, that judgments that carry no execution are unconstitutional. Fourteen state courts have considered these arguments and have unanimously concluded that they are unsound, because they proceed from a misconception as to the nature of a declaratory judgment. After some earlier hesitation, the United States Supreme Court has now held that a decree of execution is no essential part of a valid and final judgment. The fact that the highest courts in fourteen states have expressly held, after one early misstep in Michigan, that the declaratory judgment is in every respect constitutional, and that the courts of twelve other states have assumed its constitutionality, would ordinarily relieve a commentator from spending much time or space on the question of constitutionality.
Date of Authorship for this Version
Constitution, declaratory judgment, contract, Rhode Island, Maryland, Connecticut, New Jersey, Michigan, union, Anway
Borchard, Edwin, "The Constitutionality of Declaratory Judgments" (1931). Faculty Scholarship Series. 3428.
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