An Offer That Can’t Be Refused

Mel A. Topf

in A Doubtful and Perilous Experiment

Published in print September 2011 | ISBN: 9780199756766
Published online January 2012 | e-ISBN: 9780199918898 | DOI:
An Offer That Can’t Be Refused

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This chapter looks critically at the doctrine that advisory opinions are nonbinding, with no legal force or effect, the chief distinction between advisory opinions and appellate decisions. This chapter begins with an analysis of the awkward relationship between advisory opinions and judicial review, and argues that advisory opinions, typically opinions on constitutionality, adopt the reasoning and style of appellate decisions in order to affirm the judicial legitimacy of advisory opinions. This chapter then argues that the nonbinding doctrine counterbalances that by arguing that whatever the similarity between advisory opinion and appellate decision, the doctrine affirms that the opinion has no legal force or effect. This chapter tracks the history of nonbinding doctrine and looks into its weak textual foundation. Finally, this chapter argues that nonbinding doctrine fails. Virtually no one, including, often, the advising justices themselves, believes it, and for all relevant purposes the doctrine is pretty much ignored. The reason is clear. When state supreme court justices offer advice, it is an offer that can’t be refused.

Keywords: nonbinding doctrine; judicial review; appellate decisions; judicial legitimacy; judicial reasoning and style

Chapter.  10185 words. 

Subjects: Constitutional and Administrative Law

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