Declaratory Judgment

• Author: Carole E. Goldberg -Ambrose
• Pages: 756

Page 756

Until the beginning of the twentieth century, most American courts would entertain lawsuits only when plaintiffs sought redress for harm already suffered or imminently threatened. Except in certain real property actions, the plaintiff was not deemed harmed simply because uncertainty about his or her legal rights made potentially beneficial conduct too risky to undertake. For example, if a manufacturer were uncertain about whether a new product would infringe another's patent, or a would-be demonstrator were uncertain whether the planned demonstration was protected under the FIRST AMENDMENT, the only choices were to refrain from acting or to proceed and wait to be sued or prosecuted.

The declaratory judgment is a judicial remedy that allows the uncertain individual instead to file suit, asking a court to determine the legal rights in question. It reflects the view, long accepted in land title law, that paralysis due to uncertainty is real harm that courts should alleviate.

Over the first decades of the twentieth century, the states and the federal government adopted this remedy by statute. Declaratory judgments came into use not only to eliminate uncertainty but also to provide a similar but less coercive remedy to individuals eligible for injunctive relief.

Under Article III, the life-tenured federal judiciary may not give ADVISORY OPINIONS but may hear only real disputes between adverse, concretely interested parties. Because declaratory judgments are typically sought in advance of liability-causing conduct, there were early doubts that declaratory judgment actions would satisfy this requirement, known as RIPENESS. To allay this concern, the drafters of the federal declaratory judgment statute limited the remedy to "case[s] of actual controversy within [the courts'] JURISDICTION."

The Supreme Court held in Perez v. Ledesma (1971) that, for reasons of comity, a person being prosecuted in a state court for violation of a state criminal law may not seek a declaratory judgment in a federal court that the law is unconstitutional. Prior to a state prosecution, however, an individual may obtain a federal declaration of constitutional rights. That individual may have to flirt so dangerously with actual prosecution in order to satisfy the ripeness requirement, however, that the declaratory judgment may not be able to perform its salutary function of encouraging constitutionally protected conduct.

The plaintiff in a...