A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

Document Type

Book

Publication Title

A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

Publication Date

9-23-2011

Abstract

This book is the only comprehensive treatment of the history and controversies, the law and theories, about U.S. state supreme court advisory opinions. This significant but little studied area of state constitutional law has no parallel in federal law (which bars federal courts from giving advisory opinions). Just ten states permit such advising (many others have rejected it), but advisory opinions have been attacked because they clash with fundamental doctrines of American constitutionalism, including separation of powers, due process, judicial review, judicial independence, and, especially, judicial supremacy. This book offers a narrative of the attacks on state supreme court advisory opinions, telling how the law of advisory opinions arose in response to the attacks, resulting in an elaborate but not entirely successful jurisprudence of advisory opinions. This book tells of the attempts to adopt and defend advisory opinions, including New Deal-era proposals to amend the U.S. Constitution to require the U.S. Supreme Court to issue them. It tells also of the persistent and uneasy relation between advisory opinions and the power of judicial review (arguing that advising is in fact a distinct political power in its own right), and tells as well of their effects on judicial independence and the ways that they reinforce judicial supremacy.

First Page

1

Last Page

248

DOI

10.1093/acprof:oso/9780199756766.001.0001

ISBN

9780199918898,9780199756766

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