With increasing frequency in recent years, a state court decision reminds us that state constitutions remain vibrant, independent sources of constitutional law. The Oregon Court of Appeals’ recent decision in Fisher v. Lee is an example. The court held that Oregon’s statutory cap on noneconomic damages, as applied in a wrongful death action involving extraordinary injuries and losses, violated the remedy guarantee contained in Article I, section 10 of the Oregon Constitution. That provision reads:
No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.
The facts were particularly stark. The plaintiff’s husband died an agonizing death after being hit by a defendant driving over 90 miles per hour while inebriated. The trial court initially awarded $20 million in noneconomic damages but then reduced the amount to $500,000 because of a statute limiting noneconomic damages. The Court of Appeals found that such a drastic reduction—in the context of this case—left the plaintiff without an adequate remedy.
The decision also illustrates a truth that is easy to overlook in national conversations about civil justice: some of the most important constitutional questions are being answered in state courts under state constitutions. While federal constitutional law often dominates public attention, provisions like state remedy clauses can meaningfully shape access to justice.
NCJI has been highlighting how state constitutions can further access to justice for many years. In 2017, NCJI co-sponsored a symposium with the Oregon Law Review devoted to state constitutional remedy and jury trial guarantees. NCJI’s 2018 Judges Forum focused on how state constitutions could protect individual rights, and the 2025 Judges Forum focused on how state courts could wield national influence and why they have wisdom the country as a whole could learn from. Fisher is a timely reminder that thoughtful engagement with state constitutional law continues to have real-world consequences.
Marcus Gadson, NCJI Academic Program Consultant