A Doubtful and Perilous Experiment: Advisory Opinions, State - download pdf or read online

By Mel A. Topf

ISBN-10: 0199756767

ISBN-13: 9780199756766

In A uncertain and threatening test: Advisory critiques, kingdom Constitutions, and Judicial Supremacy, writer Mel A. Topf presents readers with a finished therapy of the heritage, notion, jurisprudence and controversies in relation to country ideal courtroom advisory opinions.

A uncertain and dangerous Experiment is the single complete therapy of the heritage and controversies, the legislation and theories approximately nation ideally suited courtroom advisory critiques. it is a major sector of kingdom constitutional legislation that has no parallel in federal legislation (which bars advisory critiques from federal courts). notwithstanding simply ten states have followed such advisory evaluations (many others have debated yet rejected them), they've been implicated in significant matters concerning American judicial energy. The booklet explains the-so a ways unexplained-first visual appeal of advisory authority in 1780, and deal with the continual air of secrecy of illegitimacy that has continually shadowed this authority. The common assaults at the legitimacy of advisory evaluations were caused via their conflict with uncomplicated doctrines of our felony procedure, together with separation of powers, due approach, judicial assessment, judicial independence, and judicial supremacy.

A uncertain and threatening Experiment shows how legislations of kingdom ultimate courtroom advisory critiques actually arose based on the assaults, leading to an complicated jurisprudence of advisory critiques centering on a notable yet no longer completely profitable try to justify whilst the justices will propose and once they won't. The ebook tells the tale of makes an attempt to safeguard advisory authority, together with numerous makes an attempt to amend the U.S. structure to require the superb court docket to concerns them. It tells the tale additionally of the uneasy relation among advisory critiques and judicial evaluate in addition to the growth of judicial energy.

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

Example text

The governor’s letter requesting advice is dated February 20, 1923. See In re Opinions of the Justices, 96 So. 487, 488 (Ala. 1923). 138 In re Opinion of the Justices, 96 So. at 489–90. Recall that the Delaware justices found that state’s advisory opinion clause constitutional in part because the state’s constitution contained no separation of powers clause. 24 { A Doubtful and Perilous Experiment and is no encroachment on the judiciary. ”140 It is remarkable, at any rate, for the justices to argue that a duty may be imposed on them, as long as it is nonjudicial, when, we will see, other jurisdictions rejected advisory duties on just that ground.

62 The record of returns of the towns reporting their votes are full of comments on the proposed constitution but reveals virtually nothing on the advisory opinion clause. Here is an account of all the references to the clause. 63 The other three referred to the clause, but the references are brief and obscure. 65 Apparently the advisory opinion clause was viewed as inconsistent with this. 66 Other than these few remarks, there are no substantive references to the Massachusetts advisory opinion provision in all the contemporary records.

94 Id. at 163–66. 95 Plural office holding was so deeply distrusted and so much in the foreground of public debate as to render suspect those justices comprising a purportedly independent judiciary while holding the second, extrajudicial “office” of advisors at the call of both legislature and executive. An advisory opinion clause constitutionally guaranteed the preservation of a long-accepted practice while protecting the justices from damage to their authority and prestige by the taint of accusation of plural office holding.

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A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy by Mel A. Topf


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