Advisory Opinions and the Problem of Legal Authority

60 Pages Posted: 28 Aug 2020 Last revised: 13 Jul 2022

Date Written: April 20, 2021

Abstract

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we have misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only in the United States, but also in England and British India—became opposed to advisory opinions in the second half of the eighteenth century. The death of advisory opinions was a global phenomenon, rooted in a crisis of common-law authority.

Early modern English judges had routinely advised the Crown. This advisory role was politically fraught but doctrinally unproblematic thanks to a jurisprudential orthodoxy that treated judges’ opinions as evidence of a preexisting common law. Although this declaratory theory survived into the nineteenth century (and beyond), it began to fragment after 1750, as lawyers began to disagree about the nature of precedent. Those disagreements generated new pressure to clarify the weight of different kinds of legal authority. Most lawyers intuited that advisory opinions were less authoritative than decisions arising from litigation. But because bench and bar lacked a common theory of legal authority, they were unable to articulate a shared understanding of what respect was due to judges’ extrajudicial pronouncements. As a result, advisory opinions became dangerous, because the judges who issued them could not control how future readers might treat them. In response, judges sought to limit their advisory activity—first in England, then in British-controlled Bengal, and finally in the United States, whose judges inherited Britain’s contested and dynamic understanding of judicial power.

Keywords: Legal history, federal courts, precedent, law reporting, justiciability, British Empire, Bengal, United States, common law

JEL Classification: K4|K40|K41

Suggested Citation

Burset, Christian, Advisory Opinions and the Problem of Legal Authority (April 20, 2021). 74 Vanderbilt Law Review 621 (2021), Notre Dame Legal Studies Paper No. 200826, Available at SSRN: https://ssrn.com/abstract=3681510

Christian Burset (Contact Author)

Notre Dame Law School ( email )

Eck Hall of Law
Notre Dame, IN 46556-4639
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
184
Abstract Views
1,152
rank
237,828
PlumX Metrics