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What is an Advisory Opinion?

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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 11 November 2016
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An advisory opinion is a legal opinion offered in a situation in which there is not a case or controversy, but there is concern about the interpretation or legality of the law. There are a number of settings in which such opinions may be offered. In some regions, certain courts may be barred from issuing advisory opinions under the terms of national law. When advisory opinions are issued, they may be made public or kept private depending on the nation and the nature of the opinion.

One way to get an advisory opinion is to approach a court and ask the court for an opinion. In regions where courts are allowed to offer advisory opinions, a judge or group of judges can review the information brought to the court and provide a written opinion on it. The opinion may state, for example, that a law appears to be legal and provide arguments to support this stance, drawing upon legal precedent and national values. Or an advisory opinion might suggest that a law is illegal and would be unlikely to stand if challenged.

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Another source of an advisory opinion can be a lawyer and legal scholar. Many government agencies keep lawyers on staff and may ask their staff to issue advisory opinions. This is often recommended before passing a new regulation or making major policy changes. The goal is to evaluate the material being proposed to discuss whether or not it will be appropriate. For example, an environmental agency could ask for an advisory opinion on a planned change to emissions standards.

Ethics commissions can also grant advisory opinions. In this case, someone would approach the commission asking for an advisory opinion on an issue which involved an intersection of ethics and law. Consulting people experienced in ethical matters is often recommended before undertaking a project or activity which could be viewed as ethically problematic or questionable; for example, people are required to clear research involving human subjects with ethics panels.

As a general rule, an advisory opinion is not legally binding. However, it can provide useful information about a topic of interest and it may be used to determine whether or not to move forward with a planned activity, proposal, or legal case. People should be aware, however, that opinions can differ radically. An activity cleared by one lawyer may be viewed as questionable by another, or by a court called into session to examine it, and an advisory opinion is not necessarily a green light to proceed.

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Emilski
Post 4

@Izzy78 - I was curious about your question on cases outside the US, and it turns out this is a pretty big one.

In the late 1960s and 70s I guess there was some controversy about Western Sahara and whether it belonged to a country or was just an unclaimed territory. I even think there was some physical conflict involved.

Finally, the International Court of Justice, which is a part of the United Nations, gave the Western Sahara advisory opinion that decided no one officially owned the territory.

The ICJ is just a part of the UN that has members from several different countries that give advisory opinions on different world topics. Just like in the article, their rulings have no force, they are just suggestions as to how things should be. It's interesting to know this exists. I had never heard of it before.

jmc88
Post 3

When I was in graduate school, I was working on a project where I had to interview a bunch of people over the phone. Before I could call one person, I had to fill out a bunch of different papers outlining who I was going to call and what I was going to ask them. I had to prove that I got their personal information from a legal source, too.

I guess it is important to get ethics opinions on things like medical or psychological studies, but just talking to someone seems like kind of an extreme occasion to have to have your whole project evaluated.

Izzy78
Post 2

@TreeMan - I'm not sure about that. I do know that courts can provide opinions without actually hearing a case, because we looked at a few of them in an introductory law class I took in college.

If a case gets appealed to the Supreme Court, sometimes they will make a ruling on the case and publish their thoughts without actually having anyone from the case present the issues. I don't know the intricacies of the Supreme Court, but I think this is usually done when a case decision won't be very controversial, and when most of the justices agree on what the outcome will be.

I would be most interested in knowing if there have been any famous advisory opinions on from other countries.

TreeMan
Post 1

Isn't it true that in the United States courts can't offer advisory opinions? Can't they only comment on court cases that are presented to them for a ruling? I don't really remember where I heard that, but it popped into me head as I was reading this.

I never thought about Congress needing people on hand to give advisory opinions. It would be pretty foolish to put a law in place that wouldn't stand a chance of passing a legal review.

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