January 18, 2013
Devins & Prakash: "Reverse Advisory Opinions"
Professors Neal Devins (William & Mary) and Saikrishna Prakash (Virginia) have posted on SSRN a draft of their Essay, Reverse Advisory Opinions, which will appear in the University of Chicago Law Review. Here’s the abstract:
Federal courts have increasingly issued demands and requests for legal advice from the executive branch and other parties. Without offering any justification, federal judges simply assume that they may seek legal advice from virtually anyone. These practices warrant further scrutiny. First, we believe that the federal courts lack the power to compel judicial advice, from parties to a case or otherwise. To begin with, the federal courts cannot demand opinions of Congress or the President, for Article III never grants any such power. Indeed, such a power would be inconsistent with the independence and equality that each branch enjoys. Nor can courts compel parties to supply legal arguments because such a power is inconsistent with the autonomy that parties enjoy in litigation. Courts can no more demand that parties address particular legal questions than they can demand that parties file suits. Second, with respect to nonparties, the federal courts generally lack authority even to request legal opinions. The Supreme Court’s practice of calling for the views of the solicitor general is as unjustified as it has been long-lived. The lack of justification is crucial, for current practice suggests no limits. Courts might request the advice of law professors or the National Rifle Association; they might even poll former solicitors general of the United States about what the law is. We believe this power to request legal advice is alien to Article III’s adversarial system and is instead a feature of civil law systems and congressional committees, where the inquisitors have much more latitude. The only time the federal courts may request legal advice from nonparties is when a party refuses to address a legal question deemed relevant by the court and the court asks a nonparty to provide an adversarial argument.