What's the difference between an advisory opinion and declaratory judgment?

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kraeton

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What's the difference between an advisory opinion and declaratory judgment?

Postby kraeton » Fri Jun 30, 2017 6:51 am

Reading articles/definitions of them apart I feel like it's not difficult, but I'm still not sure I'd be able to distinguish between the 2. They seem awfully alike.

I'd appreciate any help.

InterAlia1961

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Re: What's the difference between an advisory opinion and declaratory judgment?

Postby InterAlia1961 » Fri Jun 30, 2017 8:15 am

kraeton wrote:Reading articles/definitions of them apart I feel like it's not difficult, but I'm still not sure I'd be able to distinguish between the 2. They seem awfully alike.

I'd appreciate any help.


One is an opinion, and the Supreme Court has decided that the federal bench cannot issue such an opinion. It is advisory if the moving party seeks a prediction or asks for guidance. A declaratory judgment is just that, a judgment. Unlike an advisory opinion, a judgment has full legal effect. The federal bench can issue a declaratory judgment that a law, regulation, or policy is unconstitutional, leaving the door open for plaintiff to sue the county, city, municipality, or even individual who wrongly enforced it for damages. That's how you get around Eleventh Amendment immunity if you've been damaged by the federal or state government. First, you get a declaratory judgment, then you sue the pants of the unprotected entities for your damages.

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whats an updog

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Re: What's the difference between an advisory opinion and declaratory judgment?

Postby whats an updog » Fri Jun 30, 2017 8:49 am

Advisory opinion hypothetical: Prior to signing the Travel Ban, President Trump asks the Supreme Court for their opinion on whether it would be constitutional or not. They cannot do this.

Declaratory judgment hypothetical: You lawfully download movies from a legitimate distributor, but for some reason the MPAA still sends you a cease & desist letter telling you to stop. They haven't filed a lawsuit, just sent you the letter. Because you have lots of free time on your hands and want to continue downloading movies, you go to court and get a declaratory judgment saying that you have the right to continue lawfully downloading movies from the legitimate distributor. You can also think of "quiet title" actions with respect to real property (i.e. land) as forms of declaratory judgments.


It might be helpful to think about the reasoning. Advisory opinions cannot be issued because the constitution requires that there be a "case" or "controversy" before a court has jurisdiction over it. When an issue is not "ripe" (i.e. when there is not yet a dispute or controversy), the court can't hear the case, and therefore, can't issue advisory opinions. Furthermore, it often implicates separation of powers concerns, for example in the above hypothetical. If the Court were to issue an advisory opinion, they would be somewhat operating in the executive branch's territory. However, for declaratory judgments, there IS a case or controversy, because someone's rights are in-dispute. The person bringing the declaratory judgment is currently being affected by some uncertainty regarding their rights and needs the declaratory judgment to be secure. It allows potential-defendants to become plaintiffs, giving more options to parties in disputes.

Hope that helps.

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MelaPela

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Re: What's the difference between an advisory opinion and declaratory judgment?

Postby MelaPela » Fri Jun 30, 2017 10:58 am

whats an updog wrote:Advisory opinion hypothetical: Prior to signing the Travel Ban, President Trump asks the Supreme Court for their opinion on whether it would be constitutional or not. They cannot do this.

Declaratory judgment hypothetical: You lawfully download movies from a legitimate distributor, but for some reason the MPAA still sends you a cease & desist letter telling you to stop. They haven't filed a lawsuit, just sent you the letter. Because you have lots of free time on your hands and want to continue downloading movies, you go to court and get a declaratory judgment saying that you have the right to continue lawfully downloading movies from the legitimate distributor. You can also think of "quiet title" actions with respect to real property (i.e. land) as forms of declaratory judgments.


It might be helpful to think about the reasoning. Advisory opinions cannot be issued because the constitution requires that there be a "case" or "controversy" before a court has jurisdiction over it. When an issue is not "ripe" (i.e. when there is not yet a dispute or controversy), the court can't hear the case, and therefore, can't issue advisory opinions. Furthermore, it often implicates separation of powers concerns, for example in the above hypothetical. If the Court were to issue an advisory opinion, they would be somewhat operating in the executive branch's territory. However, for declaratory judgments, there IS a case or controversy, because someone's rights are in-dispute. The person bringing the declaratory judgment is currently being affected by some uncertainty regarding their rights and needs the declaratory judgment to be secure. It allows potential-defendants to become plaintiffs, giving more options to parties in disputes.

Hope that helps.


This is fantastic. Thank you!

kraeton

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Re: What's the difference between an advisory opinion and declaratory judgment?

Postby kraeton » Fri Jun 30, 2017 12:23 pm

whats an updog wrote:Advisory opinion hypothetical: Prior to signing the Travel Ban, President Trump asks the Supreme Court for their opinion on whether it would be constitutional or not. They cannot do this.

Declaratory judgment hypothetical: You lawfully download movies from a legitimate distributor, but for some reason the MPAA still sends you a cease & desist letter telling you to stop. They haven't filed a lawsuit, just sent you the letter. Because you have lots of free time on your hands and want to continue downloading movies, you go to court and get a declaratory judgment saying that you have the right to continue lawfully downloading movies from the legitimate distributor. You can also think of "quiet title" actions with respect to real property (i.e. land) as forms of declaratory judgments.


It might be helpful to think about the reasoning. Advisory opinions cannot be issued because the constitution requires that there be a "case" or "controversy" before a court has jurisdiction over it. When an issue is not "ripe" (i.e. when there is not yet a dispute or controversy), the court can't hear the case, and therefore, can't issue advisory opinions. Furthermore, it often implicates separation of powers concerns, for example in the above hypothetical. If the Court were to issue an advisory opinion, they would be somewhat operating in the executive branch's territory. However, for declaratory judgments, there IS a case or controversy, because someone's rights are in-dispute. The person bringing the declaratory judgment is currently being affected by some uncertainty regarding their rights and needs the declaratory judgment to be secure. It allows potential-defendants to become plaintiffs, giving more options to parties in disputes.

Hope that helps.


That was fantastic. Thanks so much. The underlying rationale especially helped so much with understanding the distinction.



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