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Courts Without Cases: The Law and Politics of Advisory Opinions


ISBN13: 9781509945726
Published: November 2020
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback in 2019)
Price: £39.99
Hardback edition , ISBN13 9781509922499



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The publisher will print a copy to fulfill your order. Books can take between 1 to 3 weeks. Looseleaf titles between 1 to 2 weeks.

Since 1875, Canadian 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 such disputes through advisory opinions (also called references). 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 of other legal systems, the book considers how advisory opinions draw courts into the complex relationship between law and politics. With attention to key themes such as the separation of powers, federalism, rights and precedent, this book provides an important and timely study of a fascinating phenomenon.

Subjects:
Other Jurisdictions , Canada
Contents:
Introduction
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 Process Authority, Precedent, Stare Decisis Providing Answers A. Abstract Review B. Answers, Declarations, Remedies Conclusion