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Advisory Opinions By Federal Courts, Phillip M. Kannan
Advisory Opinions By Federal Courts, Phillip M. Kannan
University of Richmond Law Review
Since 1793, the affirmative grant of authority to federal courts in Article III of the Constitution to hear and decide cases or controversies has been interpreted to prohibit these courts from giving advisory opinions. In that year, United States Supreme Court Chief Justice Jay, Justice Cushing, and District Judge Duane rejected a provision in a 1792 act of Congress that would have required the Supreme Court to settle federal pension claims of widows and orphans subject to the approval of the Secretary of War. The basis for the position taken by the Chief Justice was "that neither the legislative nor …
A Matter Of Power: Structural Federalism And Separation Doctrine In The Present, Frances Howell Rudko
A Matter Of Power: Structural Federalism And Separation Doctrine In The Present, Frances Howell Rudko
University of Richmond Law Review
Public reaction to the 1823 Supreme Court decision in Green v. Biddle prompted John Marshall's letter to Henry Clay, who had argued the case as amicus curiae for the defendant. The letter is significant because Marshall, who had been a legislator himself, candidly expresses not only his personal dissatisfaction with the congressional assault on the 1823 decision but also the constitutional basis for his opinion. The significance of Marshall's extrajudicial opinion becomes more apparent when it is considered in the aftermath of the recent tug-of-war between Congress and the Court which culminated in the decision in City of Boerne v. …