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Vol 24 No 7 July/August 2019

Book of the Month

Cover of The Law and Practice of International Finance: Set of 9 Volumes

The Law and Practice of International Finance: Set of 9 Volumes

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Courts Without Cases: The Law and Politics of Advisory Opinions

ISBN13: 9781509922499
Published: April 2019
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £70.00

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+ £12.60 VAT

In Canada since 1875, courts have been permitted to act as advisors alongside their ordinary, adjudicative role. This book offers the first detailed examination of that role from a legal perspective.

When one thinks of courts, it is most often in the context of deciding cases: live disputes involving spirited, adversarial debate between opposing parties. Sometimes, though, a court is granted the power to answer questions in the absence of cases through a reference or advisory opinions. These proceedings raise many questions: about the judicial role, about the relationship between courts and those who seek their “advice”, and about the nature of law.

Tracking their use in Canada since the country’s Confederation and looking to the experience in other legal systems, this book considers how reference opinions draw courts into the complex relationship between law and politics.

Focusing on key themes such as the separation of powers, federalism, rights and precedent, this book provides an important and timely study of a fascinating phenomenon.

Constitutional and Administrative Law
1. Courts with Cases
What Do Courts Do?
The Power, and Limits, of Cases
The Separation of Powers
Separation of Powers in Canada
2. Apex Courts
The Judicial Committee
‘A Judicial Department in Every Well-Organized Government’
A. Confederation
B. Establishment
3. Canadian References
Framing the Function
Early Quiet, Early Reform
Squaring Advisory Opinions with a General Court of Appeal
Putting the ‘Advisory’ in an Advisory Function
4. Separate Functions – Separate Powers
Executive Requests and Judicial Resistance
The Lonely Legislature?
5. Arbitrating Federalism
Federalism Post-Confederation
A. Treaties
B. Disallowance
C. Marriage
Apex Change – The Revamped Court
A. Natural Resources
B. Infl ation and Emergency
C. Inter-provincial Trade
Current Battles
A. Criminal Law
B. Economic Regulation
C. Environment and Development
6. Rebirth, and Rupture
Supreme at Last
Constitutional Rebirth
A. The Path to Change
B. Patriation
C. Consequences: Quebec Veto
7. Interpretation and Rights
Prologue: Process and Persons
An Age of Rights
A. Fundamental Justice and Criminal Fault (Motor Vehicle)
B. The Rule of Law (Manitoba Language)
C. Competing Constitutional Interests (Bill 30)
D. Revisiting Past Decisions (Prostitution)
E. The Intersection of Individual Rights, Federalism and Politics (Same-Sex Marriage)
8. Institutions
Rupture, for Real: Quebec Secession
Amendment, Actors and Judicial Supremacy
A. Frozen in Time: Senate Reform
B. Self-entrenchment
9. Actors, Advice and Law
The Core Tension
Why Pursue?
A. Doctrinal Guidance
B. Co-ordination
C. Strategy
D. Imprimatur
Why Not Comply?
Why Comply?
10. The Advisory Court
Authority, Precedent, Stare Decisis
Providing Answers
A. Abstract Review
B. Answers, Declarations, Remedies