concurring in the result:
¶ 108 Although I agree with the result reached by the majority opinion, I disagree with the way in which it is reached.1 More specifically, I disagree with the reasoning of the opinion to the extent that it is grounded upon the article I, section 11 jurisprudence having its origins in Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985). For if we are to remain true to Berry, I think we would have to reverse the court below. However, I concur in the result today only because I would overrule Berry. I think the operative test it sets forth has proven to be unworkable. It is subject to manipulation, as today’s decision illustrates, it leads to absurd results, and it distorts our relationship with the legislature. Furthermore, Berry’s substantive interpretation of article I, section 11 is inconsistent with the language and history of that provision.2
¶ 109 I have said that if we are true to Berry, we should reverse the court below. I *1225will explain. In Sun Valley Water Beds of Utah, Inc. v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989), and Horton v. Goldminer’s Daughter, 785 P.2d 1087 (Utah 1989), we struck down the earlier version of the “builders statute of repose,” section 78-12-25.5. Under the logic of those Berry precedents, the present builders statute of repose should once again be found to violate article I, section 11. The addition of the legislative findings in section 78-12-25.5(2), findings that are relied on by the majority in upholding this statute, fail to furnish a logical basis on which to distinguish the new statute from the old one.
¶ 110 As the majority notes, the legislature set forth in the revised statute four specific costs and hardships that result from exposing providers to liability after the possibility of damage has become highly remote. See Utah Code Ann. § 78-12-25.5(2)(b) (Supp.1998). Those are: (i) liability insurance costs; (ii) records storage costs; (iii) undue and unlimited liability risks during the life of both a provider and an improvement; and (iv) difficulties in defending against claims many years after completion of an improvement.
¶ 111 In Sun Valley, however, we considered almost all of these justifications and found them insufficient to uphold a seven-year statute of repose. For example, with respect to liability insurance costs and risks we stated:
[T]he statute does not protect the industry from a significant number of lawsuits since it appears that nationally only 2.1 percent of all claims are initiated subsequent to the seventh year from completion anyway.... [Thus] since the number of claims affected by the statute are insignificant, it is highly unlikely that lower insurance rates are inextricably tied to the existence of the architects and builders statute of repose.
782 P.2d at 193. In the instant ease, the majority relies on the fact that less than one percent of claims are brought after ten years from completion to justify upholding the statute. As Sun Valley noted, this fact cuts against the statute because it undercuts the stated legislative purpose of reducing insurance costs, since one percent of claims is much less than the 2.1 percent discussed in Sun Valley as “insignificant.” Furthermore, with respect to difficulties in defending old claims, we stated in Sun Valley that “[wjhile the passage of time causes inherent difficulty in defending any lawsuit, it also causes equal, if not greater, difficulty in initiating just legal action.” Id. In reaching the instant result, therefore, the majority may be reciting the Berry rubric, but it is departing from the result that rubric requires without explicitly saying so. The fact that the majority can reach this result while purporting to follow Berry and its progeny, including Sun Valley, shows one of Berry ⅛ many weaknesses. I would explicitly overrule Berry ’s easily manipulable test and propose a new rule that more properly accords with article I, section 11.
¶ 112 First, a little history. Prior to Berry, this court had addressed article I, section 11 on occasion, but had never set out a definitive test to be used to determine the limits it set on the legislature’s power to modify existing legal rights or remedies. In Berry, we broke new ground and read article I, section 11, also known as the “open courts” provision, as imposing a strong substantive limitation on the legislature’s ability to limit or eliminate a cause of action for, or the remedies available for, “injury ... to ... person, property, or reputation.” Having concluded that article I, section 11 contains such a substantive limitation, we set out an analytical model for determining whether a statute had improperly deprived an individu*1226al of a “remedy by due course of law” for an “injury done to him in his person, property, or reputation.” I do not agree either with the scope of the substantive limitation Berry found in article I, section 11 or with the analytical model founded upon it.
¶ 113 To explain this position, I start with a more detailed recapitulation of the Berry decision. There, we considered the constitutionality of a pair of six- and ten-year statutes of repose. To determine whether these statutes violated the open courts provision, we began with an analysis of article I, section IPs plain language. This interpretation did not involve a systematic examination of the language of the entire open courts provision, but instead merely fixed on the phrases “remedy by due course of law” and “injury done to him in his person, property or reputation.” The result was a superficial interpretation of the provisions. See Berry at 674-75.
¶ 114 Without parsing the provision for the meaning of key words and phrases, we found that article I, section 11 was designed to accomplish three primary purposes. First, it “guarantees access to the courts and a judicial procedure that is based on fairness and equality.” Id. at 675 (citations omitted). Second, “section 11 also establishes that the framers of the Constitution intended that an individual could not be arbitrarily deprived of effective remedies designed to protect basic individual rights.” Id. Finally, and most critically, we found that the “guarantee of access to the courthouse was not intended by the founders to be an empty gesture; individuals are also entitled to a remedy by ‘due course of law’ for injuries to ‘person, property or reputation.’ ” Id.
¶ 115 After declaring the general purposes of article I, section 11, we analyzed article I, section 11 “historically.” Unfortunately, in my view, Berry ⅛ historical analysis was limited to noting that thirty-seven states have similar constitutional provisions that all appear to have originated with Sir Edward Coke’s gloss on chapter 29 of the 1297 Magna Carta. No effort was made to determine the meaning of the open courts provision in the historical context of this state or to define what is an “injury” to “person, property or reputation.” See id. at 675-80.
¶ 116 Next, Berry sought to establish a detailed analytical model for determining when the substantive protections of the provision were violated. But to do so, Berry first had to give explicit operative substantive content to the general purposes it found in article I, section 11. In searching for that substantive content, we stated that “[t]he meaning of section 11 must be taken not only from its history and plain language, but also from its functional relationship to other constitutional provisions.” Id. at 675. To that end, we noted the similarities between article I, section 11 and article I, section 7, the due process clause.3
¶ 117 Based on this limited analysis of the substantive limitations article I, section 11 was intended to place on the legislature, we announced a two-part test for implementing those substantive limitations:
First, section 11 is satisfied if the law provides an injured person an effective and reasonable alternative remedy “by due course of law” for vindication of his constitutional interest. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one’s person, property, or reputation, although the form of the substitute remedy may be different....
Second, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbi*1227trary or unreasonable means for achieving the objective.
Id. at 680.4
¶ 118 We then applied this test to strike down the statutes of repose at issue in that case. Slapping the first prong of the analysis,5 Berry examined the objectives of the Products Liability Act and determined that the statutes of repose therein were unreasonable and arbitrary and did not further the statutory objectives. See id. at 681-83. Berry’s analysis under the second prong illustrates that it is a very stringent test that gives little deference to the legislature. Although the legislature codified its legislative findings and the purpose of both statutes of repose, see Utah Code Ann. § 78-15-2 (1987) (repealed by Products Liability Statute of Limitation, eh. 119, § 3, 1989 Utah Laws 268), we quickly dispatched the legislature’s justifications on the basis of several observations, including: (i) the arbitrary nature of the set time periods which applied to all products regardless of their useful life; (ii) our finding that while there may have been an increase in the number of products liability claims nationally, such was not the case in Utah at that time; (iii) the fact that “[p]rod-uct liability insurance premiums for Utah manufacturing companies are established on the basis of nationwide data, not on a manufacturer’s experience in Utah”; (iv) our finding that because products liability insurance is usually provided on an “occurrence” basis, the number of claims barred by the statutes of repose would be too small to impact insurance rates; and (v) the concern that the statutes of repose would reduce incentives to produce safe products. Berry, 717 P.2d at 681-83.
¶ 119 Berry’s policy concern for maintaining financial incentives to produce safe products, ie., tort liability for manufacturers and suppliers, sheds illumination on the extreme lack of deference this court gave legislative fact findings. Speaking from a purely theoretical viewpoint, without any hard empirical evidence to support our dissatisfaction with the legislature’s decision to pass the statutes of repose, we explained our safety concerns as follows:
The Utah statute of repose [for products liability claims] is likely to provide less incentive to manufacturers to take adequate safety precautions in the manufacture and design of products having a useful life of more than [the statute of repose time period], thereby increasing the already substantial number of persons who have been injured or killed by shoddy design or workmanship. Thus, the statute may well be counterproductive in terms of public safety.
Id. at 683 (emphasis added). While safety incentives may be relevant, the court’s discussion of them shows that we gave no deference to the legislature on this matter. Berry essentially assumed that the legislature either had not considered this obvious safety issue or had considered it and wrongly con-*1228eluded that the six- and ten-year statutes of repose did not present great enough risks to the public interest to prevent their enactment. Although in the court’s view, the legislature may have erred in stating the balance between the safety risks and the benefit to industry from a statute of repose, nothing in article I, section 11 bestows upon this court the unfettered right to second-guess the legislature on such a matter; nothing in that provision eliminates the traditional deference we give to the legislature when it makes policy and fact judgments. Yet we gave it no deference. Relying almost exclusively upon law review notes and cases from other jurisdictions in dismissing the legislature’s justifications, we simply re-found the legislative facts differently and opined that more people would now be “injured or killed by design or workmanship.” See id. at 681-83.
¶ 120 I recognize that we should not lightly overrule our prior cases. See State v. Menzies, 889 P.2d 393, 398-400 (Utah 1994). The burden is on me to demonstrate why that step is necessary. As the sole open dissenter today from our continued adherence to Berry’s analytic scheme, and as one who heretofore has attempted to make it work in case after case, I recognize that I carry a particularly heavy burden.6 But I have finally become convinced that the past fourteen years under the Berry regime have shown that decision’s operative test to be deeply flawed in its formulation and articulation. More importantly, a thorough parsing of article I, section 11 demonstrates to me that Berry incorrectly concluded that the open courts provision provides very specific substantive limitations on the legislature. I will first address the shortcomings of Berry ⅛ analytical model in order to better explain why the constitutional protections of article I, section 11 are procedural, not substantive.
¶ 121 The Berry test suffers from two fundamental failings. First, Berry never clearly dealt with the question of precisely what interests the open courts provision protected. Berry simply assumed that the right to recover for an injury caused by a product fell within the protection of the provision and moved on to analyze the validity of the legislature’s attempt to limit that right. Second, the second prong of the Berry test has proven to be such a strict standard in application that it can rarely be satisfied, thus depriving the legislature of any discretion in the area. I address these failings in turn.
¶ 122 First, Berry did not identify the interests protected by article I, section 11. That provision states that “every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law.” Utah Const, art. I, § 11. Berry claimed that under its interpretation, “neither the due process nor the open courts provision constitutionalizes the common law or otherwise freezes the law governing private rights and remedies as of the time of statehood.” Berry, 717 P.2d at 676. Indeed, Berry recognized that “one of the important functions of the Legislature is to change and modify the law that governs relations between individuals as society evolves and conditions require.” Id. However, because of Berry ⅛ failure to articulate a test for determining the rights to be protected, courts implementing Berry over time resorted sub silentio to the common law as declared by this court in its decisions, either as it existed in 1896 or presently, as the definition of the article I, section 11 protected rights.7 The consequence of adopting this court’s common law varied, depending upon the particular *1229legislative limitation at issue. Berry ⅛ progeny can be divided into two categories: those cases involving expansion of governmental immunity and those concerning limitations on any other common law cause of action. Together, these two lines of cases have shown that whatever the laudable motivation underlying it, the Berry analytical model is unworkable, leads to strained analyses and quixotic results, and distorts the relationship between the legislature and the courts. I address these two lines of cases in turn.
11123 The first of these lines of cases concerns governmental immunity. In this context, despite Berry ⅛ disclaimer that article I, section 11 does not constitutionalize the common law as it existed at statehood, the cold fact is that whether a cause of action existed in 1896 has become the determinative factor for whether article I, section 11 is transgressed by the enactment of governmental immunity. For example, in McCorvey v. Utah State Department of Transportation, 868 P.2d 41, 47-48 (Utah 1993), we found that section 63-30-34(1), which imposes a cap on damages recoverable from governmental entities, did not violate article I, section 11 under the facts of that case, because at common law there was no right to recover from the state for injuries resulting from the negligent paaintenanee of public roads. Similarly, in DeBry v. Noble, 889 P.2d 428, 435 (Utah 1995) (citing Madsen v. Borthick, 658 P.2d 627, 629 (Utah 1983)), we reiterated that “the scope of the protections afforded by article I, Section 11 had to be viewed in light of the immunities that were recognized when the Utah Constitution was adopted.”8 DeBry then proceeded to determine that the inspection of buildings and the issuance of temporary occupancy permits are government activities that were immune from liability under the legal regime that existed at the time of statehood. Therefore, we concluded that subsections 3 and 4 of section 63-30-10, which excepted such activities from the general waiver of immunity for injuries caused by negligence, did not run afoul of article I, section 11.
¶ 124 Absurd results can occur when the existence of an action at common law at the time of statehood is used as the litmus test for determining whether an article I, section 11 right is involved. For example, while no right of action existed at common law to sue the state for negligence in maintenance of public roads, McCorvey, 868 P.2d at 47, a right of action existed at common law to sue a city for negligence in maintenance of public roads. See Bowen v. Riverton City, 656 P.2d 434, 437 (Utah 1982); Bills v. Salt Lake City, 37 Utah 507, 512-15, 109 P. 745, 746-47 (Utah 1910). No coherent policy reason exists for distinguishing between the individual injured on a state road within city limits and the individual injured on a city road. Yet, this accident of history in the development of the common law at statehood is outcome determinative under Berry.
¶ 125 Another example of the difficulty of using the common law at statehood as the test for determining whether a constitutional right exists is Day v. State, 882 P.2d 1150 (Utah Ct.App.1994), cert, granted, 892 P.2d 13 (Utah 1995). Day, with facts somewhat analogous to this case, involved an automobile accident between the plaintiff and a police suspect being closely pursued by a highway patrol officer. See id. at 1151-52. The plaintiff was struck by the fleeing suspect when the suspect ran through a red light. See id. at 1152. The plaintiff brought suit against the Utah Highway Patrol and the individual trooper involved in the case, but the trial court granted summary judgment for the defendants on the basis of section 63-30-7(2) of the Utah Code (Supp.1990) (repealed by Act of Feb. 27, 1991, eh. 76, § 10, 1991 Utah Laws 230, 233), which provided immunity to both defendants under the facts of that case. See id.
*1230¶ 126 To determine whether that grant of immunity was constitutional under the Berry analysis, the court of appeals first determined whether a cause of action existed at statehood under the facts of that case. In so doing, the court of appeals was reduced to searching for cases near the turn of the century involving hot pursuit by a law enforcement officer of a fleeing suspect, presumably on foot or by horse, bicycle, or buggy. See id. at 1157-58. Finding no cases on this issue, the court of appeals stated the obvious: “Certainly the likelihood of harm at the turn of the century to an innocent bystander was considerably less from pursuit by horseback as compared to high speed automobiles on congested streets and highways.” Id. at 1158 (emphasis added). Ultimately, the court of appeals was forced to rely on a case involving a state deputy sheep director, who allegedly had negligently imposed a quarantine, to determine whether a cause of action would have existed under the common law at statehood. See id. (finding Garffv. Smith, 31 Utah 102, 86 P. 772 (1906), necessitated conclusion that cause of action would not lie at common law under facts of Day). In conclusion, the court of appeals admitted: “Our determination of common law remedies existing at or near the time of statehood is simply our best assessment of what a court during that era would have ruled if the issue had arisen.” Id.
¶ 127 Day provides a clear example of why Berry has proven to be unworkable in the area of governmental immunity. Courts are required to engage in an analytical wild goose chase for common law cases that are on point with a modern-day controversy. The increasing complexity of society has multiplied the variety of cases brought today compared to 1896. This variance in the fact patterns presented in contemporary cases compared to those at statehood places courts in the awkward position of trying to force current cases into pigeon holes crafted by the common law of 1896. Furthermore, because the fit between current controversies and the common law at statehood is so imprecise and because the state of the common law at statehood is so difficult to determine, given the relative paucity of prestatehood decisions by this court, the 1896 common law standard is subject to manipulation. Compare Ross v. Schackel, 920 P.2d 1159, 1162-65 (Utah 1996) (majority relying upon Garff to conclude that prison doctor’s provision of medical services to prisoners was discretionary at statehood and that, therefore, no cause of action existed at statehood for negligent provision of care) with id. at 1171 (Stewart, Assoc.C.J., dissenting) (relying on Richardson v. Capwell, 63 Utah 616, 176 P. 205 (1918), which held that jailers may be held liable for negligence in failing to provide food to prisoners, to conclude that medical care is ministerial and that, therefore, prison doctors were liable at statehood for negligence). Due to the enigmatic condition of the common law regarding whether a particular act was ministerial or discretionary at statehood, Berry creates incentives for judges to determine the constitutionality of a statute on the basis of whether an action existed at common law rather than by Berry ⅛ due process balancing test, because once this initial decision is made, the constitutionality of the statute has effectively been determined.9 Compare id. at 1166 (stating that because no cause of action existed at statehood, immunity statute is constitutional) with id. at 1176 (Stewart, Assoc.C.J., dissenting) (finding that cause of action existed at statehood and then declaring, without analysis, that immunity statute is therefore unconstitutional “because it deprives [plaintiff] of a remedy by due course of law for an injury to his [or her] person”). These problems alone place a cloud of doubt over the validity of the post -Berry line of cases on governmental immunity, which effectively exalt the fruits of questionable legal archeology over the decisions of the legislature to modernize the judicially created governmental immunity law.
*1231¶ 128 Turning next to the post-Rem/ line of cases dealing with issues other than governmental immunity, I note that the common law at statehood has played a less significant role. These cases therefore avoid the difficulty of finding that the constitution deems sacred the common law as it existed at statehood. However, these cases suffer from their own analytical infirmities.
¶ 129 Instead of focusing exclusively on the common law of 1896, these cases state that the legislature cannot restrict any judicially created cause of action, no matter when created, unless the legislature can show that it has provided an alternative remedy or that there is a clear social or economic need for the restriction. See Berry, 717 P.2d at 680 (“ [Abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective.” (emphasis added)); see also Cruz v. Wright, 765 P.2d 869, 871 (Utah 1988) (determining whether legislature had sufficiently strong justifications for abolishing common law loss-of-consortium cause of action). As a result, Berry has distorted the relationship between the legislature and the courts when it comes to who is in charge of making the law. Under orthodox notions of priority, the common law, made by judges alone, can be modified or superseded by any legislative act. See 15A Am.Jur.2d Common Lato § 18 (1976). A legislative act can be struck down only if it conflicts with a constitutional provision. See 16 Am.Jur.2d Constitutional Law §§ 3, 70, 150 (1979). But Berry, by the device of importing the common law into the constitution, has exalted the common law — the judge-made law that is at the bottom of the law-making pecking order — to the top, beyond the legislature’s effective reach. Thus, this court is placed in the position of gatekeeper of any effort of the legislature to restrict any common law cause of action, no matter when created. Absent our finding that the legislature has offered a justification that we are satisfied with, it cannot so act.10
¶ 130 This gatekeeper role is in tension with traditional notions of the separation of powers doctrine. Article V, section 1 of the Utah Constitution provides:
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in cases herein expressly directed or permitted.
Utah Const, art. V, § 1. Article VI, section 1 adds: “The Legislative power of the State shall be vested ... [i]n a Senate and House of Representatives which shall be designated the Legislature of the State of Utah.... ” Utah Const, art. VI, § 1.
¶ 131 We delineated the scope of these provisions in Ritchie v. Richards, 14 Utah 345, 363, 47 P. 670, 675 (1896), where we stated: “The power to declare what the law shall be is legislative. The power to declare what is the law is judicial.” Furthermore, we noted in Salt Lake City v. Utah Light & *1232Traction Co. that article I, section 11 does not allow this court to “reach out and usurp powers which belong to another independent and co-ordinate branch of the state government.” 52 Utah 210, 227, 173 P. 556, 563 (1918). Though the general principles of separation of powers do not require us to interpret article I, section 11 to retreat from constitutional analysis of legislative enactments, Berry has, as I noted above, distorted the relationship between the legislature and the judiciary by effectively constitutionalizing the common law as we determine it by very opaque hindsight. The legislature, not this court, is primarily charged with making the determination of the degree to which the law will recognize an injury. Such a determination involves the social policy choices best left to the citizens of this state acting through their elected legislators.11 This separation of powers conflict is most troubling in the post-Berry line of cases dealing with issues other than governmental immunity, because this court can continue to develop the common law either by eliminating or creating common law causes of action, but the legislature may only eliminate or modify a common law action, no matter when created, if the legislature can meet the difficult showing required under Berry. However, the governmental immunity line of cases also creates tension under the separation of powers doctrine, because in those cases, the legislature’s ability to expand governmental immunity is shackled by the judge-created common law as it existed in 1896.
¶ 132 When viewed in the historical context of this state, the validity of both lines of post-Berry cases is dubious. The Berry court said that “the common law at the time of statehood provides at least a measure of the kinds of legal rights that the framers must have had in mind for the protection of life, property, and reputation.” Berry, 717 P.2d at 676 n. 3. However, little reason exists for thinking that the drafters held the common law in such high regard. The early Mormon settlers of Utah were hostile to the common law, lawyers, and courts. As a result, there are relatively few reported cases in Utah in the almost fifty years between settlement and statehood. Most private controversies were either dealt with in Mormon ecclesiastical courts or mediated informally through local means. See Edwin B. Fir-mage, Religion and the Law: The Mormon Experience in the Nineteenth Century, 12 Cardozo L.Rev. 765, 788, 794 (1991). The hostility toward the common law is perhaps best illustrated by an early Utah territorial law that actively repudiated the common law, stating:
[N]o laws nor part of laws shall be read, argued, cited, or adopted in any court, during any trial, except those enacted by the Governor and Legislative Assembly of this Territory, and those passed by the Congress of the United States when applicable; and no report, decision, or doings of any court shall be read, argued, cited, or adopted as precedent in any other trial.
Laws, Territory of Utah ch. LXIV, 260 § 1 (1855). Additionally, unlike many states, Utah does not have a provision in its constitution that adopts the common law as the rule of decision in its courts. The common law was not adopted as the rule of decision in Utah courts until 1898, when the legislature enacted a statute adopting the common law. See Revised Statutes of Utah, ch. 2 1898, title 65, § 2488 (currently codified at Utah Code Ann. § 68-3-1). Even that statute qualifies the common law adoption, stating:
The common law of England so far as it was not repugnant to, or in conflict with, the constitution or laws of the United States, or the constitution or laws of this state, and so far only as it is consistent *1233with and adapted to the natural and physical conditions of this state and the necessities of the people hereof, is hereby adopted, and shall be the rule of decision in all courts of this state.
Utah Code Ann. § 68-3-1 (1998). An interpretation of article I, section 11 as constitu-tionalizing in 1896 the common law, which was not even qualifiedly made the law of the state until 1898, is inconsistent with this history.
¶ 133 Furthermore, Berry ⅛ constitution-alization of the common law is inconsistent with our pr e-Berry case law. Pr e-Berry jurisprudence on article I, section 11 focuses on the procedural guarantee of the provision, not on substantive protection. Both Salt Lake City v. Utah Light & Traction Co., 62 Utah 210, 173 P. 556 (1918), and Brown v. Wightman, 47 Utah 31, 151 P. 366 (1915), reflect a procedural interpretation of article I, section 11. In Utah Light & Traction Co., we stated that article I, section 11 “applies only to judicial questions.” 52 Utah at 227, 173 P. at 563. This statement indicates that the open courts provision concerns only injuries and remedies recognized by law and, therefore, does not provide substantive limitations on the legislature, but instead is a procedural guarantee. This interpretation is even more apparent in Brovm, where we stated, “Where no right of action is given ... or no remedy exists, under either the common law or some statute, [open courts] provisions create none.” 47 Utah at 34, 151 P. at 367; see also Madsen v. Borthick, 658 P.2d 627, 629 (Utah 1983) (“Article I, § 11 ... was not meant to create a new remedy or a new right of action”). Elaborating on this point, the Brovm court added:
The right and power, as well as the duty, of creating rights and to provide remedies, lies with the Legislature, and not with the courts. Courts can only protect and enforce existing rights, and they may do that only in accordance with established and known remedies.
47 Utah at 34, 151 P. at 367. This passage from Brown, a case decided less than twenty years after the constitution’s adoption, focuses exclusively on the procedural guarantee of article I, section 11: Courts are open to give due process for existing rights by providing established remedies, but the legislature possesses the power to determine what rights are enforceable and to establish remedies.
¶ 134 Later, in Masich, 113 Utah at 124, 191 P.2d at 624, we stated the well-settled legal principle that “no one has a vested right in any rule of law.” Proceeding from this statement, we noted that “both statutory rights and common law rights can be taken away[;] otherwise, there can be no question that acts which abolish actions for seduction, breach of promise, criminal conversation, and alienation of affections, would be unconstitutional.” 113 Utah at 124-25,191 P.2d at 624. Justice Wolfe, speaking directly to the question of the legislature’s power to change the common law, wrote:
I do not understand that Article I, Sec. 11, of the Constitution of Utah, prohibits the modification or even the entire removal or destruction of a common law right by legislative enactment. There is still such a thing as damnum absque injuria [damage without the violation of a legal right].... I see no reason why the common law which recognized rights, duties and liabilities to meet the conditions of a certain period may not later recede from those or modify them if the needs of the people require that.
113 Utah at 128, 191 P.2d at 626 (Wolfe, J., concurring). In light of this history, Berry and its progeny’s almost casual operative placement of the common law on a pedestal is quite incongruous.
¶ 135 I next move on to consider Berry’s second major problem or failing: the extreme strictness in application of the second prong of its test. As formulated and applied by this court, the second prong of the Berry analysis, which requires the legislature to justify its limitation by showing that “there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable *1234means for achieving the objective,” has placed the courts’ common law beyond the legislature’s reach. Berry, 717 P.2d at 680 (citations omitted); see also Horton, 785 P.2d at 1094-95 (summarily dismissing justifications for architects and builders statute of repose); Sun Valley, 782 P.2d at 193 (same); Berry, 717 P.2d at 681-83 (relying on law review notes and eases from other jurisdictions to dismiss justifications for products liability statutes of repose). Such an impediment to modifications of the common law exacerbates the separation of powers problem with Berry’s constitutionalization of the common law, is inconsistent with the legislature’s constitutional role in remedying defects in the common law, and is particularly ironic given the position of the common law in the normal hierarchy of laws and the fact that the common law is the rule of decision in all courts of this state by virtue of the 1898 legislative decision to adopt the common law by statute. See Utah Code Ann. § 68-3-1 (1996).
¶ 136 The problem with the severe strictness of the Berry test is perhaps better understood in light of the history of article I, section 11 jurisprudence in this state. Since Berry was issued, we have experienced a proliferation in the number of cases arguing that the legislature has abridged article I, section 11. During the eighty-nine years prior to Berry, we never once found an act unconstitutional under article I, section 11. In the past twelve years from Berry onward, we have issued three cases striking down statutes as interfering with causes of action that we concluded were insulated from legislative tampering absent a strong showing of necessity. See Horton, 785 P.2d at 1096 (striking down architects and builders statute of repose as unconstitutional); Sun Valley, 782 P.2d at 194 (same); Berry, 717 P.2d at 683 (striking down products liability statutes of repose). Additionally, several justices, including myself, have relied upon Berry to state that they would find particular statutes unconstitutional. See Ross, 920 P.2d at 1168 (Stewart, Assoc. C.J., dissenting, joined by Durham, J.) (arguing that section 63-30-4 is unconstitutional under article I, section 11); Bott v. DeLand, 922 P.2d 732, 744-45 (Utah 1996) (Stewart, Assoc. C.J., dissenting, joined by Durham, J.) (same); Lee v. Gaufin, 867 P.2d 572, 590-92 (Utah 1993) (Zimmerman, J., concurring in the result, joined by Hall, C.J.) (relying on Berry to strike down medical malpractice statute of repose); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989) (divided court striking down damage cap on basis of either open courts or uniform operation); see. also Crawford v. Tilley, 780 P.2d 1248, 1252 (Utah 1989) (interpreting Landowner Liability Act in manner that avoided conflict with article I, section 11). Before today, on only one occasion have we been satisfied with the legislative justification for limiting any common law cause of action created by this court. See Cruz v. Wright, 765 P.2d 869, 871 (Utah 1988) (upholding 1898 Married Woman’s Act, which abolished husband’s common law action for loss of consortium, under perfunctory Berry analysis).12 The significance of the Cruz holding is diminished by the extreme length of time since the passage of the 1898 Married Woman’s Act, by the dubious existence of an action for loss of consortium in Utah common law, and by the fact that two prior cases of this court, one decided only one year earlier, had not found any constitutional problem with the Act. See Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1286-87 (Utah 1987); Tjas v. Proctor, 591 P.2d 438 (Utah 1979).
*1235¶ 137 I further note that legal scholars writing on open courts provisions have observed the problems of Berry ⅛ approach and have targeted it for criticism. One scholar was particularly critical of Berry’s lack of deference to the legislature, writing:
The Berry opinion is typical of the activist use of the remedies provision against products liability statutes of repose. The standard of review of the statute in question is extremely strict. The court looked no further than the stated legislative objectives. It did not consider additional plausible or even possible justifications such as the need for administrative efficiency and the need for an adjustment to the substantive law of products liability. A statute of repose could, for example, be thought to return products liability to its origins in warranty law. In addition, the decision here put the burden on the statute to be a rational means of correcting a clear social or economic evil. When the court found plausible arguments questioning the efficacy of statutes of repose in reducing the cost of product liability insurance, the law was found unconstitutional in the absence of compelling evidence that it would have the desired legislative effect.
John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake Forest L.Rev. 237, 270 (1991) (emphasis added) (footnotes omitted). These scholars also express concern that Berry usurps the legislature’s power to make laws. See David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1215-16, 1217-18 (1992) (stating that approaches like Berry “permit courts to act like legislatures”). By constitutionalizing our most recent pronouncements on the common law, Berry effectively “placets] [this court’s] view of public policy before that of the legislature and declare[s] it inviolable.” See John H. Bauman, supra, at 283.
¶ 138 The net result of the two problems of Berry and its progeny has been that this court’s decisional law in the tort area has become enshrined as constitutionally protected from legislative modification and this court has set itself up as the final factual arbiter of the legitimacy of legislative purposes used to justify attempts to change that decisional law, granting absolutely no deference to the legislature as a judge of the need to modify that decisional law. This result would be acceptable if an interpretation of the plain language of article I, section 11 supported it or if the history of this state suggested that the ambiguous language should be interpreted to achieve this result. However, neither is the cáse.
¶ 139 The plain language of article I, section 11 does not mandate a substantive interpretation that constitutionalizes the common law. That provision states:
All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.
Utah Const, art. I, § 11 (emphasis added). The emphasized language is central to understanding the scope of protection afforded by the open courts provision in the context of immunity statutes and damage caps. The emphasized portion contains four interrelated phrases: (i) “All courts shall be open,” (ii) “every person, for an injury done to him in his person, property or reputation,” (iii) “shall have remedy by due course of law,” and (iv) “which shall be administered without denial or unnecessary delay.” The last phrase, requiring the courts to administer a person’s right to a remedy by due course of law “without denial or unnecessary delay,” is plainly a procedural guarantee, directing the courts to provide due process of law without denial or unnecessary delay. See id. (emphasis added). The command “[a]ll courts shall be open” is also a procedural right: The courts shall be available to provide remedies for legal injuries. This leaves the two phrases, here stated as a single phrase, “every person, for an injury done to *1236him in his person, property or reputation shall have remedy by due course of law,” as the only possible justifications for a substantive interpretation constitutionalizing the common law. I therefore next address the meaning of these phrases.
¶ 140 I dismiss from the start any notion that these two phrases guarantee a remedy for every injury. The law simply does not recognize that every harm suffered should be compensated. The principle damnum abs-que injuria, that there can be damage without the violation of a legal right, is too well established in our jurisprudence to give such an expansive interpretation to the obscure phrasing of the open courts provision. See Demman v. Star Co., 28 Utah 2d 50, 497 P.2d 1378, 1380 (1972); Taylor v. United Homes, Inc., 21 Utah 2d 304, 445 P.2d 140, 141 (1968); Tiller v. Norton, 123 Utah 42, 253 P.2d 618, 620 (1953); Gibbs v. Blue Cab, Inc., 122 Utah 312, 249 P.2d 213, 216 (1952). A more thoughtful analysis is required to understand these phrases. For the sake of analytical clarity, I will examine each phrase separately.
¶ 141 I first consider the meaning of the phrase “every person, for an injury done to him in his person, property or reputation,” because until there has been such an injury, the remedy issue does not arise. To understand the meaning of this phrase, one must determine what is an “injury.” Unfortunately, the word “injury” is ambiguous, and the open courts provision does not provide any guidance as to the meaning of “injury.” I have already rejected interpreting “injury” to mean any harm to person, property, or reputation; therefore, “injury” must have a more restrictive definition. The obvious solution is to define “injury” as any “legal injury.” In other words, an “injury” is a harm to person, property, or reputation that will support a cause of action.
¶ 142 This interpretation of “injury” is to this point consistent with Berry ’s interpretation. However, I diverge from Berry in my method for determining what is a “legal injury.” Berry erred by interpreting the open courts provision to place a substantive limitation on the legislature’s ability to change the law regarding what constitutes an “injury.” Because Berry's focus was on the change enacted by the legislature, Berry effectively defined “legal injury” as any injury that is or was. recognized at some point in this state’s history as an injury that supported a cause of action. Though Berry tried to avoid consti-tutionalizing the common law, see 717 P.2d at 676, this result was an inevitable consequence of Berry ⅛ substantive interpretation of the open courts provision.
¶ 143 By giving article I, section 11 a substantive interpretation, Berry left the courts with the need to find some baseline against which to judge legislative alterations of the law. Only when the legislature changes the law and thereby deprives a person of a remedy that could have been received prior to the change does an article I, section 11 question arise. The question in such cases becomes whether the legislature can justify the change from the earlier state of the law. Because judge-made common law existed prior to legislatively made statutory law, the common law is the baseline against which such changes in the law must eventually be judged.
¶ 144 Interpreting the open courts provision to contain substantive protection of particular causes of action, thereby constitution-alizing the common law, is made absurd by the fact that Utah is a state that has a history, prior to statehood, of abjuring the common law entirely. This interpretation is also inconsistent with our pre-Berry case law, which, as I noted above, focused on the procedural guarantee of the open courts provision. Given the inconsistency of Berry ⅛ interpretation of the open courts provision with this history, a substantive interpretation is cast into even greater doubt because of the tension it creates under the separation of powers doctrine of article V, section 1 of the Utah Constitution.
¶ 145 All this has, as noted above, distorted the relationship that ordinarily would be thought to obtain between the legislature and *1237the judiciary respecting common law causes of action. Any such shift in all the ordinary assumptions about who is in charge of what functions cannot realistically be thought implicit in the vague generalization of article I, section 11. I conclude that Berry erred by reading such a fundamental shift in the relationship into the malleable language of article I, section 11.
¶ 146 Having rejected Berry ⅛ reading of article I, section 11, it is incumbent on me to offer an alternative interpretation, one that addresses the need to make the provision meaningful and consistent with related constitutional provisions. First, to determine whether an “injury” to person, property, or reputation has occurred, we should look to the statutes and common law in existence at the time of the accrual of the claim. Thus, I would find that the open courts provision permits the legislature to abolish or limit both statutory and common law causes of action.
¶ 147 Having resolved how to define “injury,” I would next determine the meaning of the phrase “shall have remedy by due course of law.” As was the case with the term “injury,” the open courts provision does not provide any guidance as to the precise meaning of “remedy.” But the term “remedy” is one that the courts have greater experience in applying. A “remedy” is “[t]he means by which a right is enforced or the violation of a right is prevented, redressed, or compensated.” Black’s Law Dictionary 1294 (6th ed.1990). Though we know what a “remedy” is, we still face the task of demarcating the scope of the remedy guarantee.
¶ 148 Turning to this task, I initially note that the open courts provision provides scant indication as to the extent of the remedy guarantee. Even so, dissecting the language of the open courts provision, two profitable clues are found. First, the provision states that “every person, for an injury done to him in his person, property or reputation shall have remedy.” Utah Const, art. I, § 11 (emphasis added). Thus, the plain language of article I, section 11 prohibits the legislature and the courts from denying entirely any remedy for a legal right. Cf. Noonan v. City of Portland, 161 Or. 213, 88 P.2d 808, 822 (1938) (“The legislature cannot ... abolish a remedy and at the same time recognize the existence of a right.”). Second, the provision does not merely state “shall have remedy” but instead provides “shall have remedy by due course of law.” Utah Const, art. I, § 11 (emphasis added). This serves to cast the remedy guarantee in a procedural light. The subsequent phrase “which shall be administered without denial or unnecessary delay” reinforces this procedural emphasis. See id. Parties suffering legal injuries shall have remedy according to the dictates of the substantive law governing their action.
¶ 149 This procedural interpretation of the remedy guarantee is bolstered by the procedural nature of the injury clause and by our early article I, section 11 jurisprudence. First, as to the support provided by the injury clause, I note that interpreting the remedy guarantee to contain substantive limitations on the legislature’s ability to limit remedies would be anomalous given the fact that the legislature possesses the greater power to abolish the cause of action. Second, regarding our pre-Berry eases, these cases deferred not only to the legislature’s power to create rights, but also to the legislature’s power to establish remedies. For example, the court in Brown stated:
The right and power, as well as the duty, of creating rights and to provide remedies, lies with the Legislature, and not with the courts. Courts can only protect and enforce existing rights, and they may do that only in accordance with established and known remedies.
Brown v. Wightman, 47 Utah at 34, 151 P. at 367. For these reasons, I conclude that the remedy guarantee of the open courts provision provides procedural, not substantive, rights.
¶ 150 I recognize that this conclusion is inconsistent with my prior opinions in Lee v. Gaufin, 867 P.2d at 590-92; Horton v. Goldminer’s Daughter, 785 P.2d at 1096 (Zimmer*1238man, J., concurring); and Condemarin v. University Hospital, 775 P.2d at 366-69 (Zimmerman, J., concurring in part). However, as this court has applied the Berry test in an increasing number of cases, the problems with Berry have become more apparent to me, prompting this review of that opinion and article I, section 11. As this analysis demonstrates, Berry, in its attempt to closely review tort reform legislation, led to the con-stitutionalization of the common law and to too-close scrutiny of the legislation.
¶ 151 Although I depart today from Berry and its substantive interpretation of article I, section 11, I believe there are other adequate grounds to prevent the legislature from unreasonably limiting the ability of the citizens of this state to recover for injuries to person, property, or reputation. But, having said that, I acknowledge that I would largely withdraw from an area of substantive law and leave the field in the hands of the legislature. Whatever misgivings I may have about the potential consequences of that decision, this court cannot continue to operate on the basis that we alone are entrusted with ensuring that tort violations are dealt with fairly. That burden legitimately rests on the shoulders of the legislature. Furthermore, my review of jurisdictions that interpret their open courts provisions procedurally reveals that the legislatures in those states have not declared war on common law causes of action. Commentators on remedies provisions have made the same observation. See, e.g., John H. Bauman, supra, at 276 (“[F]ew common law causes of action have ever been abolished outright.”). Thus, I trust that the legislature would bear its burden responsibly.
¶ 152 To summarize, I conclude that the open courts provision is a procedural guarantee. Because the open courts provision does not place substantive limitations on the legislature, the legislature may eliminate a cause of action, narrow the factual circumstances that will give rise to any particular cause of action, or limit the remedies available for a legal injury. Of course, the power of the legislature to make such changes in the law is limited by other constitutional provisions, including article I, section 7 (due process clause); article I, section 22 (takings clause); article I, section 24 (uniform operation); and article XVI, section 5 (wrongful death actions). See, e.g., Bott v. DeLand, 922 P.2d 732, 744 (Utah 1996) (striking down statutory cap on damages under article I, section 9); Lee v. Gaufin, 867 P.2d 572, 589 (Utah 1993) (striking down statute of repose under article I, section 24). Furthermore, the legislature is also constrained in that it cannot make modifications affecting vested rights. That is, once the right to an action vests, the legislature is not free to thereafter eliminate the cause of action. As we stated in Sun Valley:
“[Ojnce a cause of action under a particular rule of law accrues to a person by virtue of an injury to his rights, that person’s interest in the cause of action and the law which is the basis for a legal action becomes vested, and a legislative repeal of the law cannot constitutionally divest the injured person of the right to litigate the cause of action to a judgment.”
782 P.2d at 192 (quoting Berry, 717 P.2d at 676); see also Payne v. Myers, 743 P.2d 186, 190 (Utah 1987). I note that this exception to the legislature’s ability to change the law is nearly universal. See David Schuman, supra, at 1206.
¶ 153 The procedural protection afforded by article I, section 11 is not empty. I conclude that it prohibits both the courts and the legislature from closing the doors of the courts to any person who has a legal right to vindicate. Applying the open courts provision’s procedural limitations on the legislature is consistent with our pre-Berry eases. While these early cases concentrated on the procedural requirements of article I, section II, they did not limit that provision to being a mere mandate to the courts to provide due process. In 1914, in Union Savings & Investment Co. v. District Court, we stated, “[Article I, section 11] is merely a reiteration of the pre-existing common-law right [that courts must be open] with a limitation preventing the Legislature from in any way *1239impairing or curtailing that right.” 44 Utah 397, 140 P. 221, 225 (1914) (emphasis added). Similarly, the court in Brown ¶. Wightman stated that article I, section 11 “plac[ed] a limitation upon the Legislature to prevent that branch of the state government from closing the doors of the courts against any person who has a legal right which is enforceable in accordance with some known remedy.” 47 Utah at 34, 151 P. at 366-67 (emphasis added). These statements from Union Savings & Investment Co. and Brown concentrate on article I, section IPs command that “[a]ll courts must be open,” and impose this command to limit the legislature. Though this limitation on the legislature is inconsistent with the interpretation that remedies provisions are directed only to the judiciary, it is consistent with a procedural interpretation of article I, section 11. As one commentator on open courts provisions explained, many procedural jurisdictions view their open courts provision to be directed only to the judiciary, but that a more logical interpretation “would be that the [open courts provision] applies against all impediments to fair judicial process, be they legislative or judicial in origin.” David Schuman, supra, at 1203.
¶ 154 Based on the foregoing, I conclude that, for example, barriers to the courthouse such as extremely high filing fees, extraordinarily short statutes of limitation, or arduous pretrial procedures may violate article I, section 11. See, e.g., Currier v. Holden, 862 P.2d 1357, 1372 (Utah Ct.App.1993) (striking down three-month statute of limitations on petitions for habeas corpus as violative of article I, section 11). Additionally, the plain language of article I, section 11 would not permit the courts or the legislature to recognize a legal right but to entirely deny a remedy.13
¶ 155 Applying the foregoing principles to the instant case, I would hold that the challenged statute, section 78-12-25.5 of the Utah Code, does not violate article I, section 11 because the open courts provision does not limit the legislature’s power to eliminate common law causes of action, and the statute does not otherwise run afoul of article I, section 11.
. I concur in Chief Justice Howe's interpretation of the statute as stated in his concurring opinion.
. In response to this concurring opinion, Justice Stewart has chosen to write a screed attacking not only my views on Berry, but me personally. Given that my opinion is written on behalf of only one member of this court and that Justice Stewart seems satisfied with the result reached by this court, I find the vehemence of his attack surprising. It may be explainable by his personal allegiance to the Berry opinion and its progeny. See J. Magelby & J. Peterson, Justices of the *1225Utah Supreme Court 1896-1996 66 (1997). On the other hand, it may also be attributable to the fact that he sees the truth of the premise that leads me to concur in the result reached here: It is not consistent with our past Berry cases, and it demonstrates to me that Berry's vitality is ebbing and that a majority of this court is well on its way to abandoning its unworkable analytical model. See infra, note 12. In any event, I do not choose to respond to most of Justice Stewart's individual attacks. I leave it to the dispassionate reader to determine which of our positions is the most sound.
. We did not, however, articulate what interests were protected by the open courts provision that were not protected by the due process clause.
. To justify the first test imposing a quid pro quo requirement on the legislature, this court seized upon a brief passage in Masich v. United States Smelting, Refining & Mining Co., 113 Utah 101, 191 P.2d 612, appeal dismissed, 335 U.S. 866, 69 S.Ct. 138, 93 L.Ed. 411 (1948). See Berry at 680. This passage from Masich, however, did not concern article I, section 11 analysis. Instead, the court in Masich was discussing whether the Workmen's Compensation Act was a valid exercise of police power. 113 Utah at 123-25, 191 P.2d at 624. Historically, workmen's compensation acts were challenged as being beyond legislatures’ constitutional power to enact. See 113 Utah at 124, 191 P.2d at 624. This challenge to such acts was resolved by New York Central Railroad v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917), which upheld a compulsory workmen's compensation act on the basis of a state’s police power. In the context of this historical challenge to such acts, this court in Ma-sich stated that "[i]f the legislature were to abolish all compensation and all common law rights for negligence of an employer, no contention could reasonably be made that it was a proper exercise of police power.” 113 Utah at 125, 191 P.2d at 624. Irrespective of the questionable support that Masich provides for requiring a quid pro quo analysis under article I, section 11, Berry imposed this requirement on the legislature if it abrogated a remedy or common law cause of action.
. Berry's failure to address the first prong of the framework was likely due to the fact that no substitute remedy was evident from the statute. Thus, Berry merely failed to state the obvious.
. Justice Stewart finds something troublesome in the fact that I now state that I erred in following Berry over the years. He suggests that by calling for the overturning of Berry, I am displaying a flawed judicial temperament. See ¶ 38. In response, I reject any formulation of a judge’s duty that precludes him or her from rethinking issues in light of experience and from admitting past mistakes.
. As I discuss below, focusing on the common law and thereby constitutionalizing the common law was an inevitable result of Berry’s conclusion that the open courts provision imposed substantive limitations on the legislature.
. Justice Stewart spends some time discussing whether Madsen expresses reverence for the law as of statehood and criticizing me for mischarac-terizing that case. Whether or not Madsen cared about the law at statehood does not concern me, since Madsen precedes Berry, the starting point of our current predicament. Whether DeBry legitimately relied on Madsen is irrelevant. The point is that DeBry did demonstrate concern that governmental immunity be measured by standards that were reflective of its dimensions at statehood.
. As I explained above when discussing Berry and the extreme lack of deference contained in the second prong of its test, a statute is almost certain to be declared unconstitutional once the Beny test is triggered. Additional problems flowing from the strictness of the Berry test are explored in greater detail below.
. Berry permits the legislature to create new causes of action or limit the scope of governmental immunity, but the legislature may not cut back on any cause of action without meeting the very high threshold set by this court’s Berry test. As we stated in DeBry, "the restriction or abolition of an immunity raises no constitutional issue under article I, section 11 because a restriction or an abolition serves only to enhance, not diminish, the rights protected by that provision.” 889 P.2d at 436; see also Ross, 920 P.2d at 1169 & n. 4 (Stewart, Assoc.C.J., dissenting). This one-way street analysis for legislative changes in the common law severely curtails the legislature's ability to "declare what the law shall be.” See Ritchie v. Richards, 14 Utah 345, 363, 47 P. 670, 675 (1896). Yet, this court is not similarly constrained in its development of the common law. This court has permitted itself the right to do away with causes of action without meeting the stringent Berry test. See Jackson v. Brown, 904 P.2d 685, 687 (Utah 1995) (abolishing action for breach of promise to marry without conducting Berry analysis even though this court had previously recognized such an action); Norton v. Macfarlane, 818 P.2d 8, 16-17 (Utah 1991) (finding that nothing in Berry opposes the abolition of "obsolete causes of action”).
. By way of illustration, take for example the situation where a nonnegligent motorist injures a pedestrian. Whether the pedestrian's injury should be legally cognizable involves difficult social decisions. How necessary are automobiles for traveling in this state? How does this need balance against the risks to pedestrians? What party can more easily bear the economic burden of the injury? The decision by the members of this court regarding these issues should not be viewed as being so unquestionably infallible that the people of this state, acting through their legislature, cannot resolve the liability question differently than we.
. Today's decision, as I noted earlier, is significant only insofar as it shows how easily the balancing test of Berry can be manipulated. Today it is used in a manner inconsistent with Berry and its progeny, particularly Sun Valley. Today the test produces a result that upholds legislative action without giving up this court’s claim of authority to strike down another legislative action if the spirit moves us.
But it is possible that today's decision is also significant in another way. Because it departs so significantly from our prior cases in its application of the second prong of the Berry test, today's ruling may indicate that some members of this court are uneasy with Berry's legacy of judicial supremacy and wish to temper it by sub silentio, modifying how Berry is applied. The better course, in my view, is to be candid and overrule Beny outright.
. There may be a point at which the remedy provided is so insignificant or nominal as to not constitute a remedy as a matter of law.