To Create a Power to Refuse

Mel A. Topf

in A Doubtful and Perilous Experiment

Published in print September 2011 | ISBN: 9780199756766
Published online January 2012 | e-ISBN: 9780199918898 | DOI:
To Create a Power to Refuse

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This chapter highlights the advising justices’ extraordinary, probably unique, animosity toward their advisory opinion duty, expressing an often open reluctance to advise, even when required by the state’s constitution, and sometimes expressing outright hostility toward the duty. This chapter shows that it was out of this animosity that a jurisprudence of advisory opinions developed. This chapter tracks the history of this development and its relation to the animosity in all the advisory opinion states. It then reviews the chief principles and elements of that jurisprudence, including the nonbinding doctrine (advisory opinions do not have the legal force of a binding decision) and the chief restrictions on when the justices will advise, and the interpretive standards they will apply—for example, their strict construction of the advisory opinion provisions and their prohibition on advising on private rights.

Keywords: jurisprudence; nonbinding doctrine; advisory opinions—restrictions; private rights; strict construction

Chapter.  15924 words. 

Subjects: Constitutional and Administrative Law

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