Challenging Penal Statutes by Declaratory Action

Edwin Borchard, Yale Law School

Abstract

One of the principal purposes of the declaratory action is the removal of clouds from legal relations. By dissipating peril and insecurity and thus stabilizing legal relations, it avoids the destruction of the status quo, and assures a construction or interpretation of the law before rather than after breach or violence. The aim of this article is to point out the inadequacies in the existing methods of challenging statutes, especially police power statutes carrying a penalty for non-compliance. These methods compel either enforcement or a threat of enforcement as a condition of adjudication; they fail to distinguish different types of "criminal" statutes, thus either abusing or unduly limiting the scope of injunctive relief; and they hamper and impede a more intelligent method of adjudicating challenges to the constitutionality or applicability or construction of so-called "penal" statutes, ordinances and regulations.