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1530 1530 1531 1533 1535 1538 1539 1540 1540 1541 1538 1538 petitioner still faces the faces still petitioner ...... 1530 ...... 1529

* me and effort but also insulting insulting but also effort me and , 2020. My thanks to Professor Tomás ion his or her ability to carry out carry out or her ability to ion his on less-than-friendly terms. More than More terms. on less-than-friendly of mandamus takes a gamble. If unsuc- gamble. a takes of mandamus by 1527 1527 ndamus poses such risks because appellate risks such poses ndamus ion of their cases, appellate courts should cases, appellate ion of their Audrey Davis MANDAMUS summa cum laude ...... 1533 S. Supreme Court and Congress. Supreme Court S...... 1537 And even if successful, the successful, And even if ...... 1540 2. Court Proceedings ...... Proceedings 2. Court 2...... Remedy Adequate No Other 1...... Legal Right Established Clearly 1...... Restoration to Public Office 2...... Lower Courts of Supervision 3...... Errors Non-Discretionary Corrected Mandamus 1...... Wrongs “Public” Redress for Offered Mandamus 2. “Temporal” Rights...... Rectified Mandamus 1...... Mandamus in King’s Bench C. Writ the Elements of Limits D. Substantive Uses E. Primary A. Mandamus the Writ of of The Origins B. Writ the for of Moving The Mechanics Lewis & Clark Law School, A RETURN A RETURN USE OF THE THE TRADITIONAL TO WRIT OF risk of returning to the district court the district risk of returning to ma the writ of however, anything, for in developing a standard approaches varying widely employed courts have foster and to litigants predictability greater to offer In order the writ. granting administrat ease of district courts’ adhere to the relatively strict standard set by the history of the writ in England in England writ the of the history by set standard strict relatively the adhere to the U. by and later endorsed the district court judge by calling into quest judge by court the district of a judge. duties basic the cessful, the petitioner risks not only wasting ti not risks the petitioner cessful, A litigant filing a petition for a writ writ for a a petition filing A litigant * M K II. 1529 in England ...... Mandamus

Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

I. Introduction ...... 1528 ...... Introduction I. Gómez-Arostegui for his assistance of English through thelegal world history and to Professor John Parry for the encouragement to explore this topic. C Y 42938-lcb_24-4 Sheet No. 201 Side A 02/02/2021 10:18:46 A 02/02/2021 201 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 201 Side B 02/02/2021 10:18:46

M K C Y 1557 1557 1557 1551 1551 1552 1546 1543 1543 1545 ...... 1551 ...... 1554 ...... 1555 ...... Courts should return to return to Courts should  ...... 1543 ...... 37, 60–91 (1982).

. Marbury EV R

...... 1547 ...... 1546 L.

. UFF , 31 B ...... 1557 ...... But what, exactly, is the limit of this broad statutory statutory broad this of the limit But what, exactly, is I. INTRODUCTION  The Mandamus Power of the United States Courts of Appeals: A Complex b. Appeal Approach: Use as an The Expanded a. a. Power” of Approach: “Usurpation Traditional The a. 1651 of § The Evolution b. § 1651 How to Interpret 1. 1...... Lack of Predictablity Appeals Piecemeal 2. 1. 1...... Approach an Expanded of Recent Use The Supreme Court’s 2...... Varied Approaches Courts’ The Circuit 1. 1...... Writ the of Early Understanding Courts’ Federal 2...... Article III’s Limitation 3. Post- for Mandamus Implications C. Policy Implications C. Policy B. Interpretations of Mandamus Modern Appellate Courts’ Federal A. The Bounds of the in the United Writ States 28 U.S.C. § 1651(a) (2018). Robert S. Berger, The U.S. Code grants federal courts the ability to issue writs of mandamus issue writs of mandamus federal courts the ability to grants The U.S. Code The writ of mandamus has grown to be somewhat of a mystery within appellate mystery within a of somewhat be to of mandamus has grown The writ 1 2 IV. Conclusion ...... 1558 ...... Conclusion IV. writs such or deny to grant appellate courts by held wide discretion The practice. of their the strengths predict comfortably to without the ability litigants leaves many appellate depriving predictability, without potential petitions. A path to greater of the understanding historical, traditional the lies in a return to court discretion, writ as developed in early English history. agreeable to the appropriate in aid of their respective jurisdictions and “necessary or of law.” usages and principles text? More specifically, to what degree may a federal appellate court use a writ of a writ appellate court use a federal degree may what to specifically, text? More departed courts have recent years, some court? In inferior an supervise mandamus to from boundaries the set by Congress and the Supreme Court and instead expan- the writ to usurp the sively use discretion of lower courts. and Confused Means of Appellate Control a restrained approach to the writ not only to conform to the limits set by Congress, set writ not only toto the limits the conform approach to a restrained a litigant. Part for uniformity and more predictability bring effort to an in but also eighteenth century, and writ in England through the of the the history II outlines the writ into the United States. Part III follows the history of 1528 1528 III. 1543 ...... in the Mandamus United States REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete Not (Do Delete) 1/24/2021 4:52 PM 42938-lcb_24-4 Sheet No. 201 Side B 02/02/2021 10:18:46 B 02/02/2021 201 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 202 Side A 02/02/2021 10:18:46

, S ’ A

, ING RIT OF K he later

W , by virtue (London, SPINASSE LACKSTONE An option An option ‘E 7 B (“The writ of

(n.p. 1740) (“A (n.p. 1740) (“A OURT OF

C SAAC I

ICTIONARY 527 ILLIAM ILLIAM King’s Bench D REROGATIVE note 4, at 528, at 4, note P AW AW AW L L

supra IGH A ,

IDE OF THE IDE , H S (London, T. Cadell ed. 1793) 2d

ACON 6 661 OWELL ROWN C ge to the Sheriff, to take into the King’s the motion for the writ . . . .”); de Smith, C RIUS P OHN ISI N , J 179 (London, R. (London, Pheney 1828) 179 Scholars do, however, consistently catego- consistently however, do, Scholars BRIDGEMENT OF THE RACTICE OF THE 3 The prerogative writs earn their name from The prerogative writs A 4 P 40, 40–41 (1951) (dating the first uses of the word

EW RIALS AT L.J. ESSIONS N T S RACTICE OF THE RACTICE OF THE

see also, e.g. (“[B]ut where it is matter of a private nature, it is in the P A

AW AND at 56 (“At so early a period of our legal history did this writ , urse, or to be granted merely for asking.”). L HE , R v. Askew (1768) 98 Eng. Rep. 139, 141; 4 Burr. 2186 (KB) T

, its institution cannot, with any accuracy, be shewn.”). with any accuracy, be shewn.”). cannot, its institution HE ACON AMBRIDGE AMBRIDGE T II. MANDAMUS IN ENGLAND IN ENGLAND II. MANDAMUS B

, UDE CTIONS AND (defining mandamus as “a Char mandamus as “a (defining A G But see id.

note 4, at 44–45. note 3, at 57; 57; at 3, note (describing mandamus as a “high prerogative writ”); 2 (describing

, 11 C note 4, at 180 at 4, note RACTICE OF THE RACTICE OF THE see also, e.g. APPING P R v. Barker (1762) 96 Eng. Rep. 196, 196; 1 Black.R v. Barker (1762) 96 Eng. Rep. 196, 196; 1 W. 352 (KB) (Mansfield, ATTHEW supra True to the form of a prerogative writ, mandamus issued at the dis- issued writ, mandamus of a prerogative form the True to supra T AW OF *110 5 , L ICHARD ICHARD supra R ,

2 (1853). 2 (1853). at 540; see also , 3 M Id. UDE APPING HOMAS T de Smith, G T E.g. In its earliest uses in the fourteenth and fifteenth centuries, mandamus served served mandamus centuries, the fourteenth and fifteenth In its earliest uses in The earliest uses of mandamus may date as far back as the thirteenth century, as the thirteenth may date as far back uses of mandamus The earliest note 4, at 44 (“[Prerogative writs] are not writs of course; they cannot be had for the asking, 7 5 6 3 4 M K ANDAMUS IGEST OF THE OMMENTARIES OMMENTARIES ENCH AND THE Matthew Bacon describes mandamus as “Writ of Right,” B but proper cause must be shown to the satisfaction of the court why they should issue.”). Though supra centuries); C.J.) (“A mandamus is certainly a prerogative writ, flowing from the King himself . . . .”). persons.”); 1 their association with the King and issued almost exclusively out of the Court of Court of the out of almost exclusively issued the King and with their association King’s Bench. of that general superintendency which that courtpossesses over all inferior jurisdictions and hands all the Lands and Tenements of the King’s Widow, that against her Oath formerly given, marryeth without the King’s consent”). Mandamus . . . is therefore termed . . . a Prerogative Writ . . . .”); 3 W to the 17th habeas corpus, and mandamus certiorari, describing and 18th “prerogative” in discretion of the Court either to grant the writ, or refuse D. Browne et al. 1708) of return in this context would give the party subject to the mandamus an oppor- the mandamus subject to party would give the context this in of return should could not or action explain why the commanded and to court tunity to come exist . . . that the exact date of rize mandamus as a “prerogative” writ. “prerogative” rize mandamus as a as a charge from the Crown to a third party with no option of return. option no party with to a third the Crown as a charge from mandamus is a high prerogative writ of a most extensive remedial nature . . . .”); S.A. de Smith, . . . mandamus is a high prerogative writ of a most extensive remedial nature C D (“The Writ of Mandamus is a prerogative writ, issuing out of the Court of B A. The Origins of the Writ of Mandamus Mandamus of Writ of the A. The Origins unclear. origins remain exact though its M 2020] 2020] OF MANDAMUS WRIT 1529 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

The Prerogative Writs The Prerogative cretion of the court instead of as a matter of course. a matter of instead of as cretion of the court (Mansfield, C.J.) (“[T]he Court ought to be satisfied that they have ground to grant a mandamus: it is not a writ that is to issue of co emphasizes the discretionary power available to the justices of King’s Bench in choosing to grant the writ. C Y 42938-lcb_24-4 Sheet No. 202 Side A 02/02/2021 10:18:46 A 02/02/2021 202 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 202 Side B 02/02/2021 10:18:46

, M K 16 13 C Y supra ACON , (1903)

B

These di- 11 see also 235–51

OLDSWORTH Vernon v. Blackerby Vernon Next, it grew into its its grew into Next, it 73–112, 9 (London, J. Worrall & Co.

AW L 594 King’s Bench’s close ties to King’s Bench’s close ties to 14 AW L NGLISH E , James Bagg’s Case (1615) 77 Eng. Rep. 1271, ISTORY OF H

BRIDGEMENT OF THE A (explaining that mandamus grew to(explaining “obtain[] the sanction see also, e.g. A

, s jurisdiction is no doubt due to the peculiarly intimate s jurisdiction is no doubt due to the peculiarly intimate EW N

A

, note 7 (defining “Return”). “Return”). note 7 (defining

note 4, at 43–44. note 3, at 57 OLDSWORTH 10 ACON note 3, at 57; H B supra

, Later into the fifteenth century, mandamus offered individuals a a offered individuals mandamus century, the fifteenth into Later supra supra 8 supra , , OWELL ATTHEW , R v. Rushworth (1734) 25 Eng. Rep. 618, 619; W. Kel. 287 (Ch); This capacity for oversight and connection to the crown made King’s King’s to the crown made and connection capacity for oversight This at 93–112. 1 W.S. C APPING 15 APPING E.g. de Smith, 1 M Vernon v. Blackerby (1740) 27 Eng. Rep. 686, 686–87; Barn. C. 377 (Ch). T See Id. The following two Sections explain the procedures used to pursue a writ of a writ of pursue used to procedures the explain Sections two The following See T 1768) (characterizing King’s Bench’s power of “reforming and keeping inferior jurisdictions

The English courts developed into a system of specialized divisions by the time by the system specialized divisions of into a developed The English courts 1. Mandamus in King’s Bench 1. Mandamus in King’s of mandamus, grant writs did occasionally of Chancery Though the Court Lord Chancellor Hardwicke’s guidance to the litigants in the litigants to Lord Chancellor Hardwicke’s guidance 12 note 4, at 540. 13 14 15 16 8 9 10 11 12 within their proper bounds” as a fundamental category of its jurisdiction); H category bounds” as a fundamental within their proper 1272; 11 Co. Rep. 93 b. (KB) (restoring plaintiff to his a corporation on a “writ ofposition in restitution”). 3d ed. B. The Mechanics of Moving for the Writ the for of Moving Mechanics B. The century. the seventeenth in use common relatively mandamus came to mandamus. mandamus. note 11, at 92 (“[T]he court of King’s Bench had to amend ‘other errors and jurisdiction Thi misdemeanours extra-judicial.’ (quoting James Bagg’s connection of the court with the person and the prerogative of the crown.” Case (1615) 77 Eng. Rep. 1271, 1277–78; 11 Co. Rep. 93 b. (KB))).

of an original writ”). (describing the development of the common law courts and the rise of the Court of Chancery). visions include the Courts of Common Pleas, Exchequer, King’s Bench, and Chan- King’s Bench, Exchequer, Common Pleas, of the Courts visions include cery. Court of King’s Bench. the majority issued out of the 1530 1530 place. not take REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM supra way to petition Parliament for redress, most commonly restoration to public office, office, public restoration to commonly redress, most Parliament for to petition way of restitution.” “writ a known as to be came and it eventually offers an illustration contemporary to the time of the proper venue for mandamus. contemporary to the time offers an illustration Bench a fitting host for the writ. host for Bench a fitting modern use as an original writ, offering a legal remedy in the form of a command a command of the form legal remedy in offering a writ, as an original modern use Bench. from King’s the crown itself led to its extensive jurisdiction not only over many criminal and only over led to its extensive jurisdiction not the crown itself governmental or made by judicial of errors over complaints also civil matters but officers. 42938-lcb_24-4 Sheet No. 202 Side B 02/02/2021 10:18:46 B 02/02/2021 202 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 203 Side A 02/02/2021 10:18:46

24 in in EW 17 N

see also

A

, ACOB J ILES ILES Lord Hardwicke Lord Hardwicke G

18 note 4, at 672; supra

, This characterization of of This characterization Accompt, 22 SPINASSE commanded a party to complete an an commanded a party to complete If that party was a corporation, the the a corporation, was If that party 23

26 Though Lord Hardwicke did not fully explain his Hardwicke did not fully explain his Though Lord (“The Writ is to be directed to him, who by Law is obliged

note 7 (defining “Accompt”); 21 supra He proposed that instead of asking for an account in in account for an instead of asking that He proposed , 19 note 4, at 672. OWELL note 4, at 540 at 4, note supra

, (London, J. & J. Knapton, et al. 1729). supra , , 27 Eng. Rep. at 686. , 97 Eng. Rep. at 561–62. Further, because mandamus directly because mandamus directly Further, , R v. Corp. of Wigan (1759) 97 Eng. Rep. 560, 561; 2 Burr. 782 (KB) (“The Court at 686–87.

at 687. Lord Hardwicke described King’s Bench as the “natural” and “proper” and “natural” as the Bench King’s Lord Hardwicke described SPINASSE 25 ACON 20 B ‘E E.g. Wigan An “account,” also referred to as an the defendant pay money “accompt,” demands that Vernon Id. Id. Id. Id. ICTIONARY , 27 Eng. Rep. at 491 (“It absurd would be if a bill should lie against a person who is only 2. Court Proceedings 2. Court Proceedings King’s Bench set highly-technical English common law, In accord with the -D 23 24 25 26 17 18 19 20 21 22 M K AW owed to the plaintiff. C the issue as supervision of inferior officers, rather than as a dispute between two a dispute as rather than of inferior officers, the issue as supervision of mandamus for King’s Bench. highlights the suitability private individuals, the writ only to The court required plaintiffs to direct mandamus. for strict rules the wrong. the power to rectify with the party to execute it, or to do the Thing thereby required . . . .”); ‘E action, two cross-motions for mandamus on the same issue, such as an election for mandamus on for action, two cross-motions would command the would lead to “double trouble” because they public office, to complete two opposite actions. parties court for Vernon to seek relief. court for Vernon to writ had to list the corporation’s name, not just any individual in the corporation. any individual name, not just the corporation’s to list writ had reasoning, he did note mandamus, that with Vernon a writ of would be asking the commissioners to “do their Duty.” court to compel the equity, Vernon should first ask the commissioners of the project to decide the issue the to decide the project of the commissioners first ask should equity, Vernon in King’s move for mandamus do so, if they fail to and then, between themselves Bench.

If the party named the incorrect defendant, then the court would not correct that not correct then the court would If the party named the incorrect defendant, mistake. Vernon whom it shall be the writ, to determine ‘to cannot take upon themselves, previously to issuing directed.’”); R v. (1700) 91 Eng. Rep. 1276, 1276–77;Mayor of Rippon 1 Ld. Raym. 563 (KB) (rejecting the writ because it incorrectly listed the defendant Aldermen, and as “Mayor, Commonalty of Rippon” instead of “Mayor, Burgesses, and Commonalty”). L 2020] 2020] an account for asked a statute, to according built of a church a parson Vernon, OF MANDAMUS WRIT 1531 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM an officer, and subordinate to others, and has no directory power.”). expressed doubt in the strength of Vernon’s case and took issue with his choice to choice to his issue with case and took of Vernon’s strength the doubt in expressed in equity. suit bring the Chancery of dividends from Blackerby, the treasurer of the fund. of the treasurer the Blackerby, from of dividends Chancery C Y 42938-lcb_24-4 Sheet No. 203 Side A 02/02/2021 10:18:46 A 02/02/2021 203 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 203 Side B 02/02/2021 10:18:46 M K C Y A per- 34 The legis- The court The court 36 29 , the court had the court had ,

37

28 as opposed to the initial writ, the initial as opposed to note 4, at 180. hold a corporate assembly, but the assembly, but hold a corporate vestigated. But as there of is no probability supra R v. Mayor of Kingston of R v. Mayor If the defendant did not comply with with not comply If the defendant did , 33 UDE Any question as to the accuracy of facts al- the accuracy of facts as to Any question G

This additional phrase rendered the rendered “ill” writ phrase This additional Once the court made the rule absolute, the the the rule absolute, Once the court made 35 27 30 raising a question in this case, we oughtraising a question to grant a rule to shew note 4, at *111. note 4, at *111. note 4, at *111. note 4, at *111; note 7 (defining “Attache”). supra supra supra supra , , , , note 4, at 180. supra , supra , If the defendant could not persuade the court to discharge the rule, the rule, the discharge the court to the not persuade could defendant If the Sometimes the court would grant or refuse the writ without requiring requiring would grant or refuse the writ without Sometimes the court , R v. Bishop of Ely (1794) 101 Eng. Rep. 267, 268; 5 T.R. 475 (“If there were (KB) 32 at *113.

31 UDE OWELL LACKSTONE LACKSTONE LACKSTONE LACKSTONE B E.g. B Id. C B The Municipal Offices Act 1710, 9 c.Ann. 25, § 6 (Eng.). R v. Mayor of Kingston (1724) 88 Eng. Rep. 151, 151; 8 Mod. 209 (KB). Id. G B So long as the writ named the correct defendant and struck the correct level of correct defendant and struck named the writ the So long as Even if the plaintiff did list the proper the proper peti- rejected list did if the plaintiff Even also the court defendant, 31 32 33 34 35 36 37 27 28 29 30 cause, in order that the question might be further in . I think it would be unjustifiable to put the bishop to the . throwing fresh light on this case . expence of shewing cause against a rule.”). the most remote probability of the most remote probability lature later simplified this process for plaintiffs wrongfully displaced from public wrongfully displaced process for plaintiffs this lature later simplified only one and allowing of “showing cause” into steps the two office by condensing alleged in the mandamus proceeding. to dispute the facts parties court would then grant writ, a peremptory which, further op- giving any without action the commanded the defendant to complete otherwise. the court convince portunity to proceeding. in a separate tried only be leged during this process could son put in contempt by attachment could be personally seized and brought to court brought and seized personally be could attachment contempt by son put in seized. property or have his personal because it dealt with the distinct rights of different people. different of rights distinct the with dealt because it the first instance. in mandamus for apply could specificity, plaintiffs

the opposing party to show cause if the resolution of the issue was clear enough to was clear enough to of the issue the resolution if cause to show party the opposing the court. 1532 1532 REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM granted mandamus commanding the mayor to the mayor commanding granted mandamus their freedom have a who admit all those to “to court added the phrase: clerk of the free of that corporation.” right to be tions that were too broad. For example, in in example, For were too broad. tions that would then make an initial ruling asking the defendant to show cause why the court why the court cause show defendant to the asking ruling make an initial would then make the rule absolute. should not defendant would have to comply with the writ or offer an explanation for his failure or offer an explanation for his to comply with the writ defendant would have to do so. the peremptory writ, the defendant would suffer contempt by attachment. the defendant would the peremptory writ, 42938-lcb_24-4 Sheet No. 203 Side B 02/02/2021 10:18:46 B 02/02/2021 203 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 204 Side A 02/02/2021 10:18:46

41 R v. R v. Though Although 49 44 First, in failed to show 39 Samuel Blooer, Samuel 40 R v. Doctor Askew Dr. Letch moved for mandamus for mandamus moved Dr. Letch 46 But Lord Mansfield granted the writ, But Lord Mansfield 43 The court unanimously denied Dr. Letch’s denied Dr. The court unanimously 47 46, 50 (1936). , the plaintiff in , ANSFIELD Dr. Letch, the plaintiff, was denied admission to the the to admission was denied plaintiff, Dr. Letch, the Blooer M 45 Counsel for Blooer argued that Langley could not clearly Counsel for Blooer that Langley could not clearly argued 42 ORD L

, , 98 Eng. Rep. at 142 (“[I]t that they does not by any means appear, have acted IFOOT F

, 97 Eng. Rep. at 698. Askew ironed out the rules governing the writ of mandamus. writ of the governing ironed out the rules Each justice’s opinion emphasized Dr. Letch’s failure to show a right to to to show a right failure Dr. Letch’s emphasized justice’s opinion Each ,

at 698. at 140. at 144. R v. Governor of the Bank of Eng. (1780) 99 Eng. Rep. 334, 335; 2 Dougl. 524 (KB) R v. Blooer (1760) 97 Eng. Rep. 697; 2 Burr. 1043 (KB); R v. Barker (1762) 97 Eng.

at 699. at 697. 38 48 .

Id. Id Id. R v. Askew (1768) 98 Eng. Rep. 139, 141; 4 Burr. 2186 (KB) (Mansfield, C.J.). Id. Id. Id. E.g. See C.H.S. See Blooer Id. , he emphasized the necessity of showing a clear legal right. showing necessity of , he emphasized the 50 Unlike the plaintiff in By the end of the eighteenth century, King’s Bench had developed two ele- developed had century, King’s Bench of the eighteenth By the end 1. Clearly Established Legal Right Legal Right Established 1. Clearly 1756 from Bench Justice of King’s Mansfield, Chief Lord cases, series of In a 43 44 45 46 47 48 49 50 38 39 40 41 42 M K upon improper grounds, or Here is no arbitrarily and capriciously. ground laid for demanding a mandamus.”). directing his admission to the college. to the directing his admission a parishioner, had thrown out the curate of the town’s chapel, William Langley. the town’s chapel, of had thrown out the curate a parishioner, procedures. prescribed followed the the college had because admission Mansfield swiftly dismissed Blooer’s argument, this point of discussion in court em- court in discussion point of this argument, Blooer’s dismissed Mansfield swiftly right to the reliefholding a clear legal of requested. the importance phasizes a clear right to a remedy. Blooer the point may seem fundamental, the plaintiff must clearly establish a denial of some the seem fundamental, the point may right. Langley asked the court to issue mandamus directing Blooer to reinstate him to his his him to directing Blooer to reinstate mandamus court to issue the Langley asked chapel. position at the Rep. 823; 3 Burr. 1265 (KB); R v. Askew (1768) 98 Eng. Rep. 139; 4 Burr. 2186 (KB) (Mansfield, C.J.). 2020] 2020] the Writ of C. Elements OF MANDAMUS WRIT 1533 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

petition. concluding that Langley did have a legal right to hold the position. have a legal did concluding that Langley show that he held a license for his position. a license for show that he held College of Physicians A committee had approved Dr. Letch, but the full in London. later rejectedthe college his admission. body of ments required for a writ of mandamus: a clear right to relief and the lack of a spe- the lack and right to relief mandamus: a clear of for a writ ments required element. describe each The following Sections cific remedy. to 1788, C Y 42938-lcb_24-4 Sheet No. 204 Side A 02/02/2021 10:18:46 A 02/02/2021 204 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 204 Side B 02/02/2021 10:18:46

M K 59 52 C Y note note supra , APPING of a clearly estab- of a clearly

T See The defendants com- 55 Though the plaintiffs’ actions in court court in actions Though the plaintiffs’ 60 ordering the bailiff to restore Yates to the orderingto restore Yates to the the bailiff 53 term for “writ of mandamus.” This case presents the opposite outcome as seen as the opposite outcome presents This case reveals the extent to which the court will protect protect will court the which to the extent reveals 51 remedy of a mandamus.”).

, 82 Eng. Rep. at 876. 61 the court granted the writ restoring Yates to the corporation. the to Yates writ restoring the the court granted When the parties came to court for a second time, the defendants second time, the defendants a for to court When the parties came 58 : instead of denying mandamus because of a lack mandamus denying : instead of 56 When defendants came to court to show cause, the court ended up When defendants to show cause, the court came to court 54 at 878.

at 877. at 879. Id. “Writ of restitution” was another Town of Kingston Id. Id. Id. Id. Id. Id. Id. Protector v. Town of Kingston (1655) 82 Eng. Rep. 876; 477 Style (UB).

Despite the plaintiffs’ clear act of fraud, or in Chief Justice Glynne’s words, Glynne’s in Chief Justice fraud, or clear act of the plaintiffs’ Despite Protector v. Town of Kingston Town v. Protector The court’s willingness to set aside Yates’s deception reveals the court’s formal- deception reveals aside Yates’s to set The court’s willingness 57 53 54 55 56 57 58 59 60 61 51 52 Doctor Askew their “act of a high nature tending to everthigh nature tending all government in hindring the proceed- a their “act of ings of justice,” in argued that lying to the court should be reason enough to disfranchise the plain- to disfranchise enough be reason should the court to argued that lying tiffs. dismissing everyone because they believed the disagreement between the plaintiff they believed the disagreement because dismissing everyone likely cause “a tumult and uproar.” and defendant would

The justices stuck to the question of whether or not the plaintiffs had a clear right a whether or not the plaintiffs had to the question of stuck The justices the in disfranchising follow local custom to relief. Because the corporation did not a right. such find court did plaintiffs, the (“When there is no specific remedy, the Court that justice will maygrant a mandamus be done. the right of the party applying is not clear, the Court will not . . . But where (as in this case) a party’s clearly established rights. a party’s clearly restitution a writ of Yates asked for hall. They the town in remained his co-plaintiffs but Yates and plied and left court, 3, at 57. 1534 1534 REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM alone could justify the disfranchisement, the court stated that the defendants still still the defendants the disfranchisement, the court stated that alone could justify must follow custom. lished right, the court here granted the writ on a finding that the plaintiff, Yates, plaintiff, a finding that the the writ on the court here granted lished right, had apparently a corporation bailiff of The a clear legal right. had demonstrated corporation. from the and five other “freemen” disfranchised Yates wrongfully corporation. interpose the extraordinary lied to the record keeper and somehow convinced him that they “were a Court” and and they “were a Court” that him keeper and somehow convinced lied to the record there “was no sufficient such as that book into the court ordered favorable entries to be them done by Yates and the others, to cause retorned to be matter of fact disfranchised.” 42938-lcb_24-4 Sheet No. 204 Side B 02/02/2021 10:18:46 B 02/02/2021 204 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 205 Side A 02/02/2021 10:18:46 to EPORTS IN R mandamus And by the And by the 65 ERM T Instead, the analysis the analysis Instead, After all, mandamus mandamus After all, Conflict between the between the Conflict (“Wherever a party has a 64

63 67 OLUMES OF OF OLUMES V , Lord Mansfield issued a writ Lord Mansfield , In light of the heated religious the heated of In light 69 EVEN S In the eyes of Lord Mansfield, manda- of Lord Mansfield, In the eyes 62 R v. Barker In NDEX TO THE 66 I B. will refuse to grant a mandamus.”). it its application to “occasions where the law has estab- law “occasions where the to application it its IGESTED 127 (London, J. Butterworth 1799) D

A

, ENCH B note 4, at 43–44.

S

’

OMLINS 70 T ING supra

K He explained that ordering a new election or trying the election in in new election or trying the election He explained that ordering a , 97 Eng. Rep. at 823–24. 68 T.E.

, R v. Governor of the Bank of Eng. (1780) 99 Eng. Rep. 334, 334; 2 Dougl. 524 , Daniel Appleford’s Case (1671) 86 Eng. Rep. 750, 751; 1 Mod. 82 (KB) (Hale, C.J.) at 824–25. at 826.

E.g. Barker Id. Id. Id. R v. Barker (1762) 97 Eng. Rep. 3 Burr. 1265 (KB). 823, 825; Id. de Smith, E.g. OURT OF see also 2. No Other Adequate Remedy Remedy Adequate 2. No Other in reservations express began to Bench King’s century, In the seventeenth In addition to having no other “adequate” legal remedy, Lord Mansfield often often Mansfield remedy, Lord “adequate” legal other having no to In addition C 66 67 68 69 70 62 63 64 65 M K of mandamus commanding the trustees of a religious “meeting-house” to accept the accept the “meeting-house” to commanding the trustees of a religious of mandamus priest. Mr. Hanmer, a protestant election of validity of the restore whomhim against a judgment is given?”). eighteenth century, the court routinely refused to grant mandamus if the party al- the party if mandamus refused to grant the court routinely eighteenth century, (“Suppose a Temporal Court over which we have jurisdiction do give judgment in assise to recover an office; so long as that judgment stands in force, do you think that we will grant a quate or desired. mus should ignore arguments of fairness and public policy. and public of fairness ignore arguments mus should Protestants and Catholics likely fueled this dispute. Lord Mansfield noted that man- dispute. Lord fueled this Catholics likely Protestants and followed, he ex- the “failure[s] of justice” and it to correct use damus came into must lim courts plained, that ought in justice and good government there remedy, and where lished no specific to be one.” granting the writ when the party could seek his remedy elsewhere. his the party could seek granting the writ when was strictly limited to whether the petitioner had a right to relief and, as explained the petitioner had a right to relief and, strictly limited to whether was remedy. had an alternative Section, whether the petitioner in the next THE (KB); specific legal remedy, the Court of K. 2020] 2020] Lord Mans- opinion, one relief. In right to party’s clear a to analyzing istic approach liberally been “ha[d] fact that mandamus the for expressed some reproach field even empha- and recent years in justice” “advancement of of the the name in interposed” when policy of public weigh[]” matters not “scrupulously should courts sized that mandamus. for an application considering OF MANDAMUS WRIT 1535 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

ready had an adequate legal remedy. ready had an adequate “prove[] a determined purpose of violence” and further emphasized Chancery would protection of the law. Protestants deserved that the animosity laying the groundwork for the dispute, Lord Mansfield concluded that Lord the groundwork for the dispute, animosity laying ade- means was by no violence, which was a resort other remedy to Hanmer’s only issued primarily out of King’s Bench, not out of Chancery. Bench, not out out of King’s issued primarily C Y 42938-lcb_24-4 Sheet No. 205 Side A 02/02/2021 10:18:46 A 02/02/2021 205 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 205 Side B 02/02/2021 10:18:46

, M K 83 In C Y R v. 80 would would Further, see also 76 , discussed in , discussed quare impedit quare By stating that that stating By 78 quare impedit But Lord Mansfield Mansfield But Lord Lord Mansfield also Lord Mansfield also 73 75 R v. Blooer The lord of the manor refused to accept manor refused to accept lord of the The 82 By “specific,” he meant that the party applying applying the party that meant he By “specific,” 71 William Moreton had been nominated as curate of a curate of as William Moreton had been nominated 81 remedy.”

Trespass may offer him a way of recovering damages or the or the damages recovering way of a him Trespass may offer , the court rejected the writ because the party possibly had a possibly had writ because the party rejected the , the court 77 Counsel for Blooer argued that Langley could bring an action an Langley could bring for Blooer argued that Counsel Although counsel for Moreton argued that Although counsel for Moreton He explained that Langley may not be able to bring an action an action bring able to be not may Langley that He explained 72 84 74 the availability of a remedy in equity also barred mandamus. equity also the availability of a remedy in . 79 , 97 Eng. Rep. at 697. , R v. Blooer (1760) 97 Eng. Rep. 697, 698–99; 2 Burr. 1043 (KB);

at 782. R v. Marquis of Stafford (1790) 100 Eng. Rep. 782, 785; 3 T.R. 646 (KB).

at 782–83. at 783. at 698. at 699. Id. Id. Id. Id. R v. Barker (1762) 97 Eng. Rep. (KB). 823, 825; 3 Burr. 1265 See Id. Id. Id. Id. E.g. Blooer Id. Id. R v. Barker R v. Although the justices of King’s Bench frequently referred to a party’s adequate adequate Bench frequently referred to a party’s Although the justices of King’s 75 76 77 78 79 80 81 82 83 84 71 72 73 74 Langley had no other “specific” remedy, Mansfield meant that Langley had no other meant that Mansfield remedy, “specific” other Langley had no as curate. would restore him to his position remedy that “legal” remedy, require him to join nearly one hundred individuals as parties to the action and thus and thus action the as parties to hundred individuals join nearly one require him to for ejectment or trespass, rendering mandamus unnecessary. mandamus or trespass, rendering for ejectment Counsel for the lord argued that Moreton could seek a remedy by seek a remedy lord argued that Moreton could the Counsel for citing Moreton, apparently because of Moreton’s reputation for “immoral” behavior. for “immoral” reputation Moreton, apparently because of Moreton’s 1536 1536 “specific phrase the used REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

described the difficulty Langley would encounter in locating the heirs of the “feoff- encounter in locating would Langley described the difficulty his action. to bring their names use let him them to ees” and persuading for trespass because the chapel was not legally in his name. the chapel was because for trespass land itself, but it would not restore him to his position as curate. as his position him to restore it would not but land itself, for mandamus must show a lack of a legal remedy that directly addressed the wrong addressed the that directly a legal remedy lack of show a must for mandamus in approach demonstrated this Mansfield Lord committed. Lord Mansfield noted that even if Langley could bring an action for trespass, he still for trespass, he action that even if Langley could bring an Lord Mansfield noted fully recover. may not granted the writ, reasoning that ejectment and trespass were not “specific” remedieswere not “specific” that ejectment and trespass reasoning granted the writ, case. in Langley’s chapel in the manor of Stowe Heath. Stowe manor of chapel in the Bishop of Chester (1786) 99 Eng. Rep. 1158, 1160; 1 T.R. 396 (KB); R v. Governor of the Bank of Eng. (1780) 99 Eng. Rep. 334, 335; 2 Dougl. 524 (KB). R v. Marquis of Stafford R v. Marquis or in equity. remedy at law Part I.C.1, a case where Blooer had dismissed the plaintiff Langley from his position position had dismissed a case where Blooer Part I.C.1, his Langley from the plaintiff curate. as a chapel 42938-lcb_24-4 Sheet No. 205 Side B 02/02/2021 10:18:46 B 02/02/2021 205 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 206 Side A 02/02/2021 10:18:46

, 85 ROWN B the court 92 OSIAH The justices suggested suggested The justices R v. Marquis of Stafford R v. Marquis 90 mandamus, or alternatively, that or alternatively, that mandamus, is in a Court of Equity. A party applying A party applying is in a Court of Equity. not issue if the party had another the party had another if not issue

mandamus could either argue that the that the either argue mandamus could 86 specific remedy, they only a specificmean remedy granted mandamus even though the party applying granted mandamus even though the party applying 59 (London, 1793). QUITY E Unfortunately for Moreton, the justices denied manda- the justices denied Moreton, Unfortunately for , reasoning the fact have been “giv[ing] that courts that into” 88 ASES IN and therefore that the remedy and therefore , 100 Eng. Rep. at 785 (Buller, (“For J.) it appears to me on these C Clarke v. Bishop of Sarum Clarke Further, despite the fact that Justice Buller made an effort to draw effort to draw made an Justice Buller that fact Further, despite the quare impedit 89 .

, R v. Barker (1762)96 Eng. Rep. 196, 196; 1 Black. 352 W. (KB); 1 J But there is more to take away from this case. First, Justice Buller clarified clarified Justice Buller First, this case. from is more to take away But there at 784. at 783–84. at 785. 87 BRIDGEMENT OF Id. See id. Id. The court in Id. Id. E.g. Marquis of Stafford A Thus, at bottom, the party opposing party opposing the bottom, Thus, at Beyond a clear right to relief and no alternative remedy, the court considered Cases and treatises of the eighteenth century often cite often century treatises of the eighteenth Cases and 91 89 90 91 92 85 86 87 88 EW M K N

low from the court’s hesitancy to exceed the bounds of its own authority. of its bounds the to exceed hesitancy low from the court’s for the simple proposition that mandamus will mandamus that proposition for the simple remedy. that the party opposing mandamus could not point to a remedy in equity as an as in equity point to a remedy not could mandamus opposing that the party adequate specific remedy. that if the plaintiff had a remedy in equity, then the “Court [could not] interfere at interfere not] [could then the “Court a remedy in equity, had that if the plaintiff all.”

for a mandamus must make out a legal right; though if he shew such therelegal right, and be also when for the a mandamus; Court refuse to an application for that is no answer in a remedy equity, to grant a mandamus because there is another at law.”). mandamus was “more expeditious and less expensive.” (1738) 93 Eng. Rep. 1046, 1046; 2 Strange 1082 (KB). could pursue a A a that this is affidavits trust, the court did not agree and denied the writ. did not agree and denied the court 2020] 2020] remedy, legal alternative adequate as an classified be to a burden great too pose OF MANDAMUS WRIT remedy” respect to the “adequate between law and equity with the distinction without a difference. was distinction prong, it seems this 1537 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM would likely not grant the writ. the writ. grant would likely not Limits D. Substantive factors these above, primary elements described the to contrast factors. In additional only fol- described in the next Section The factors were not necessarily dispositive. mus in part because they believed he may have had an adequate legal remedy in he may have had an they believed because part mus in quare impedit the case more properly fit in Chancery and should be dismissed from King’s Bench. should be dismissed and Chancery properly fit in the case more either means of relief other did have mandamus for the party applying Either way, if King’s Bench, a few exceptions made by apart from at law or in equity, plaintiff had another legal remedy, thus precluding legal remedy, thus plaintiff had another C Y 42938-lcb_24-4 Sheet No. 206 Side A 02/02/2021 10:18:46 A 02/02/2021 206 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 206 Side B 02/02/2021 10:18:46

, M K

,” 97 C Y note supra INER

, V

422–28 422–28 It then supra , Original 93 , SPINASSE QUITY E Because Blooer APPING and treatises. 98 . . . .”). mere private nature . 1515, 1525 (2001) 96 EV R

AW AND L.

L . ng to some public concern. concern. to some public ng OLUM court opinions, therefore termed . . . a Prerogative Writ, James E. Pfander, Marbury E. Pfander, James , 101 C 95 ‘E Nation is concerned.”); where the Office is private BRIDGEMENT OF see also A , in which counsel for the plaintiff and defendant to go “victim of official inaction”). But the court failed to accept this argument court failed to accept this argument But the (“A Mandamus is a Writ . . . issuing regularly only in . (“A Mandamus is a Writ . 99

not The public versus private distinction became became distinction versus private The public ENERAL ENERAL 94 G

A As explained by counsel for Blooer, Blooer’s position Blooer’s position Blooer, counsel for by As explained

, s over real property pendingand other cases in King’s Bench. An 100 INER note 4, at *109; do generally respect matters of public concern.”). note 4, at 527 V R v. Lord Montacute supra supra (“Mandamus ought (“Mandamus ,

, the case in which the plaintiff sought restoration to his position restoration to his the plaintiff sought , the case in which , HARLES mandamus’s C , the issue before the court boiled down to whether the plaintiff held to boiled down before the court , the issue

ACON (“[Mandamus] is not applicable as a redress for mere private 15 wrongs.”); at 699. at 698.

, B , Daniel Appleford’s Case (1671) 86 Eng. Rep. 750, 751; 1 Mod. 82 (KB) (Hale, C.J.)

LACKSTONE Id. Id. 101 R v. Blooer E.g. R v. Blooer (1760) 97 Eng. Rep. 697, 698; 2 Burr. 1043 (KB). Id. B See 14 example, See, for E.g. note 94, at 185 The court’s characterization of “public,” however, was fairly broad. For exam- fairly was however, of “public,” The court’s characterization 1. Mandamus Offered Redress for “Public” Wrongs Wrongs “Public” for Redress Offered 1. Mandamus justice.” or neglect of the “refusal mandamus remedied At its core, 2. Mandamus Rectified “Temporal” Rights Rectified “Temporal” Rights 2. Mandamus in the sand from the Church. For example,careful to draw a line The court was 97 98 99 100 101 93 94 95 96 R v. Ashton but will issue “in all cases of public but will issue “in T concern, or of offices of a public nature”); (describing mandamus as the redress for the being grantable only where the Publick Justice of being grantable only where the the Publick Justice Cases relating to the Publick and the and Government; is 3, at 58–59 ple, in argument that failed to take up defense counsel’s chapel, the court as curate to a public for mandamus. insufficiently a dispute Blooer’s claim posed commonplace in counsels’ arguments in in commonplace court, counsels’ arguments counsel defense office,” not hold a “public chapel” and did a “private to was a curate issue. should not argued mandamus

note 4, at 666 (stating that mandamus will not issue “where the office is of a (London, 1742) for a list of cases in which the Court of Chancery granted injunctions. Thesethe Court of Chancery granted injunctions. (London, 1742) for a list of cases in which cases cover issues such as dispute his case at law, for example, litigating be directed at would from prohibiting a party injunction that individual and not the court. argued about whether or not the issue was in “furtherance of public justice.” (1751) 96 Eng. Rep. 33, 33; 1 Black. W. 61 (KB). supra This context contrasts with that of an injunction, for example, which traditionally traditionally example, which for an injunction, of that with contrasts This context private disputes. resolved purely (“I confess, that follows that the writ usually addressed disputes relati addressed disputes usually writ the follows that 1538 1538 REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM as a curate, regardless of the chapel’s private or public funding, still served the public the public served still funding, or public the chapel’s private of as a curate, regardless by man- remedied within the realm of public wrongs the dispute good and placed damus. in and instead issued the writ. and instead issued the Jurisdiction, and the Supreme Court’s Supervisory Powers 42938-lcb_24-4 Sheet No. 206 Side B 02/02/2021 10:18:46 B 02/02/2021 206 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 207 Side A 02/02/2021 10:18:46 The 111 According According The justices The justices to keep an ale- 112 He stated: 108 113 Giles , the court refused to issue issue , the court refused to Although the report lacks reasoning Although the report lacks That is, there was no legal necessity That is, there how King’s Bench distinguished “tem- distinguished Bench King’s how 109 110 John Giles’s Case John The justices of the peace had already denied The justices of the peace had already denied 107 , the court rejected a writ of mandamus that it it that writ of mandamus rejected a , the court ionary in the justices to grant or to refuse it.”). Each reported opinion made note of the party’s tem- of the note opinion made Each reported 104 note 4, at 668 for a mandamus to (“As where the application was It matters less exactly less It matters supra

106 , The plaintiff applied for mandamus directing his restoration to to restoration his directing mandamus for applied plaintiff The R v. Bishop of Ely 102 Despite the defendant’s argument that this right was “ecclesiastical,” “ecclesiastical,” was right that this argument defendant’s Despite the Chief Justice Ryder, for example, explained a parish clerk should not clerk should not explained a parish Ryder, for example, Chief Justice SPINASSE 103 105

at 268. ‘E

Id. Id. Giles’s Case (1731) 93 Eng. Rep. 914, 914; 2 Strange 881 (KB). Id. Id. See R v. Bishop of Ely (1794) 101 Eng. Rep. 267, 269; 5 T.R. 475 (KB). Id. Id. R v. Ashton (1754) 96 Eng. Rep. 159837, 837; Sayer (KB). Id. Id. 3. Mandamus Corrected Non-Discretionary Errors Errors Non-Discretionary Corrected 3. Mandamus over- from using mandamus to Bench also refrained of the King’s The justices Similarly, in Similarly, in 106 107 108 109 110 111 112 113 102 103 104 105 M K house, it was refused; for it is discret mandamus ordering the justices of the peace in the City of Worcester to grant Mr. Worcester to grant of the peace in the City of the justices mandamus ordering Reeve a license to keep an ale house. ride the discretion of inferior officers. In ride the discretion of legal right to relief. be directed to the justices of the peace,compel to them to grant a licence to of the court unanimously denied the writ. denied unanimously of the court poral right.

parish clerk. received attention distinction that this Rather, the fact poral” from “ecclesiastical.” only ex- the Church. Although the toes of to step on reveals the court’s hesitance seemed to have an im- judges the lawyers and a few opinions, plicitly addressed in assert a temporal, mandamus must that the party supporting plicit understanding 2020] 2020] right. a temporal OF MANDAMUS WRIT 1539 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM when some other judicial officer had already exercised its discretion. exercised its when some other judicial officer had already Mr. Reeve this license and he moved for mandamus in King’s Bench. moved for mandamus in King’s he license and Mr. Reeve this of a fellow of a college. readmission the writ to compel sought plaintiff be removed without cause, whether he had been “appointed by the parson or elected the parson by he had been “appointed whether cause, without be removed by the parishioners.” believed would have infringed on the discretion of the bishop of a college. the bishop of on the discretion have infringed believed would the court granted the writ. granted the court from the justices, the case was later cited for the proposition that mandamus would would that mandamus proposition was later cited for the the case from the justices, necessity.” was no “legal there not issue if to the court, the writ would have improperly superseded the discretionary power of superseded the discretionary power have improperly to the court, the writ would settled for near been “so clearly that it had Kenyon noted Chief Justice the bishop. affairs. would not meddle in the college’s a century” that the court C Y 42938-lcb_24-4 Sheet No. 207 Side A 02/02/2021 10:18:46 A 02/02/2021 207 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 207 Side B 02/02/2021 10:18:46 M K C Y note 94, at supra , This understand- INER 115 15 V , in which he notes that this This use was welcomed welcomed This use was was when aldermen, capital was when aldermen, capital 116 see also claiming that the only way to way to the only claiming that Anonymous mandamus stration of justice, were kept out, to swear

114 A request for restoration to public office brought brought A request for restoration to public office Holt’s opinion in 118 note 4, at 529. supra , ACON , B and subsequently listed in treatises as the primary type of case in which which type of case in listed in treatises as the primary and subsequently , R v. Corp. of Wells (1767) 98 Eng. Rep. 41, 41–42; 4 Burr. 1999 R v. (KB); Mayor

at 269. 117 Id. Id. E.g. Justice for example, Chief See, See, e.g. ment upon the whole. If therefore we were to interfere, it would be for the be would it interfere, were to we If therefore whole. the upon ment controlling his judgment. purpose of cannot interfere in order to correct it. to correct it. interfere in order cannot . . . judg- his has exercised bishop] [The [T]his Court has no other power than that of puttingthan that of in power power no other Court has [T]his the visitatorial erroneous, we the visitor be ever so if the judgment of but that . . . motion, should only set in of mandamus a writ that clarify comments Justice Kenyon’s 1. Restoration to Public Office Public to 1. Restoration em- frequently eighteenth centuries, individuals and the seventeenth During Considering the established elements of the writ and its substantive limits, limits, elements ofConsidering the established its substantive the writ and 114 115 116 117 118 of Wilton (1697) 87 Eng. Rep. 642, 642; 5 Mod. 257 (KB); 1540 1540 REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

he did so. Justice Grose offered the following example: “If the bishop had not exer- not had the bishop “If the following example: Grose offered he did so. Justice .” . . . him we would have compelled all, at cised his judgment mandamus was more properly suited for certain issues than others. The following following The than others. issues suited for certain more properly was mandamus supervise infe- and to public office to restore the plaintiff use to address its Sections rior courts. public office. a to seek restoration ployed mandamus to reclaim what he was duly owed—his position—was to compel the defendant to re- the defendant to to compel position—was owed—his was duly reclaim what he Finally, position. these cases involved public rather than plaintiff to his store the position his duly earned reclaim to right individual’s because an disputes private into play many of the fundamental characteristics of mandamus. The plaintiff would would The plaintiff mandamus. of into play many of the fundamental characteristics plaintiff the right. Next, to office as a clear, legal restored assert the failure to be an adequate remedy by would easily show a lack of motion an individual’s execution of his duties, but not question his discretion when his discretion question but not of his duties, execution an individual’s motion use strikes at the core of the writ: “The true reason of ing of mandamus’s role as simply a non-discretionary command later carried over later carried command a non-discretionary role as simply ing of mandamus’s below. States, as discussed to the United E. Primary Uses 185–98. by courts a court would grant mandamus. would a court them into, or at least restore them into their places . . . .” (1702)Anonymous 88 Eng. Rep. 1589, burgesses, or such other officers concerning the admini 1589; 12 Mod. 666 (KB). 42938-lcb_24-4 Sheet No. 207 Side B 02/02/2021 10:18:46 B 02/02/2021 207 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 208 Side A 02/02/2021 10:18:46

120 Frend appealed their vote vote Frend appealed their 125 That is, mandamus could not not could mandamus That is, 102–03 (London, MacMillan & Co. 102–03 (London, MacMillan & Co. se; we never say how the case is to be 121 OLICE P USTICE AND USTICE J

, Finally, the decision to accept an individual to public of- public to an individual decision to accept Finally, the AITLAND , 98 Eng. Rep. at 44 (describing a serjeant at law as a public office , 98 Eng. Rep. at 44 (describing a serjeant at Cook (1860) 121 Eng. Rep. 221, 222; 2 El. & El. 586 (QB) (“[N]or M 119

Rather than reviewing the merits of an underlying case, with underlying case, with merits of an the reviewing than Rather W. This supervision differs from a modern-day appellate court’s re- court’s appellate a modern-day from differs This supervision 123 124 Ex parte , , R v. Chancellor of the Univ. of Cambridge (1794) 101 Eng. Rep. 451, 451; 6 , R v. Askew (1768) 98 Eng. Rep. 139, 142; 4 Burr. 2186 (KB) (Mansfield, C.J.). , R v. Peters (1758) 97 Eng. Rep. 452, 454; 1 Burr. 569 (KB) (denying mandamus Corp. of Wells REDERIC , F See, e.g. See, e.g. See Rep. 267,R v. Bishop of Ely 268; (1794) 101 Eng. 5 T.R. 475 (KB); R v. Chancellor of E.g. See, e.g. See, e.g. Instead, mandamus in this context remained true to form by only correcting by only correcting form true to context remained this in Instead, mandamus (distinguishing King’s Bench control of lower courts from appellate review).

2. Supervision of Lower Courts of Lower 2. Supervision of compelling certain actions writs of mandamus granted King’s Bench rarely A pair of cases involving the same underlying facts outline the limited extent facts outline same underlying A pair of cases involving the 122 123 124 125 119 120 121 122 M K fice involved little to no discretion because the dispute would come down to whether come down would dispute the because discretion no little to fice involved the proper procedures. followed defendant had or not the concerning the “administration of justice”); R v. Barker (1762) 97 Eng. Rep. 823, 826; 3 Burr. 1265 (KB) (“The right depends upon election: which interests the all voters.”). non-discretionary errors. King’s Bench’s supervision of inferior courts via manda- via of inferior courts supervision King’s Bench’s non-discretionary errors. of because it regulated only the mechanics means of review other from mus differs the lower courts.

1885) mand to a lower court because, for example, instead of asking the lower courts to to asking the lower courts of instead for example, because, court a lower mand to would simply Bench King’s from reexamine a particular issue, a writ of mandamus itsexercise place, that is, the issue in the first compel the lower court to examine judicial discretion. 2020] 2020] comfort- court would which the for justice,” of “administration the public involved mandamus. ably grant OF MANDAMUS WRIT of a lower court’s rul- court or change the outcome a lower of discretion usurp the ing. 1541 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM inferior courts. The court restricted the use of mandamus in this context to only to only context restricted the use of mandamus in this court inferior courts. The the lower courts fulfilled their duties. ensuring that does this Court, to it for a on application mandamus to a Court having a judicial discretion, ever because the inferior court held the power to set aside an interlocutory judgment). the Univ. of Cambridge (1794) 101 Eng. Rep. 451, 451; 6 T.R. 89 (KB). T.R. 89 (KB) (finding the lower court jurisdiction, and exercised proper refusing to alter the lower court’s sentence); Mr. Amhurst’s Case of Gray’s-Inn (1673) 86 Eng. Rep. 127, 127; 1 Ventris mandamus, King’s Bench only controlled the way justices of lower courts exercised Bench only controlled the way justices mandamus, King’s their discretion. to which King’s Bench would review a ruling of an inferior court. The master and court. The master and review a ruling of an inferior to which King’s Bench would voted to Cambridge, the University of within a college Jesus College, five fellows of had writ- from his fellowship because he remove the plaintiff, Reverend W. Frend, pamphlet. a controversial and dispersed ten, printed, decided.”). do more than direct the Court to hear and determine the ca 187 (KB) (granting mandamus commanding alderman to enter a judgment). C Y 42938-lcb_24-4 Sheet No. 208 Side A 02/02/2021 10:18:46 A 02/02/2021 208 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 208 Side B 02/02/2021 10:18:46

M K 138 126 C Y The justices an- Frend appealed his his Frend appealed 137 132 at 268–69 (“If the bishop had not

Id. 134 es Ashhurst, Buller, and Grose all found it es Ashhurst, Buller, specific remedy; that chiefly applies to cases where no authority to say how he should have decided.”). , 101 Eng. Rep. at 452. rd Frend’s appeal. After giving him a chance to defend himself, the vice- After giving him a but they found no injustice in this case and discharged case and discharged this injustice in no they found but 130 135 The University of Cambridge also removed Frend from his Frend from his Cambridge also removed The University of Though a few of the justices could not help but express their their help but express the justices could not Though a few of 129 139 university had hea

Chief Justice Lord Kenyon explained that mandamus should only should only explained that mandamus Lord Kenyon Chief Justice Frend refused, and the college “banished” him. Frend refused, and , 101 Eng. Rep. at 267. 127 131 The court concluded that the university properly exercised jurisdiction exercised jurisdiction properly that the university concluded The court at 451. at 268. He then applied for mandamus in King’s Bench, contesting the jurisdic- King’s mandamus in He then applied for at 462 ground (“The for granting a mandamus . principal . is, where. it is to prevent

at 461. at 460. at 452. . at 465. The other justices of King’s Bench agreed, making a point to state that to state that a point agreed, making King’s Bench justices of The other 136 Id. Id. Id. Id. Id Id. Id. Id. Bishop Id. Id. Kenyon, Justic Lord with Chief Justice Along Chancellor of the Univ. of Cambridge Id. 133 128 The justices did acknowledge that they could use mandamus to correct an “in- use mandamus that they could The justices did acknowledge 133 134 135 136 137 138 139 126 127 128 129 130 131 132 position at the university. the rule. a failure of justice, and where there is no other there is no jurisdiction to appeal to, or where the judgment pronounced is clearly an excess of the jurisdiction of the court below.”). in determining Frend’s sentence and choosing to banish him. choosing to banish in determining Frend’s sentence and banishment within the university’s internal court system, but his sentence was af- was sentence his but court system, internal the university’s within banishment firmed. But Frend not only objected to the jurisdiction of the university court, he also dis- of the university only objected to the jurisdiction But Frend not puted his sentence. He then applied for mandamus in King’s Bench, demanding that the college hear that the college Bench, demanding in King’s for mandamus He then applied to the university asking even denied the writ without The court again. his appeal show cause. the university court. given by sentence tion and 1542 1542 internal college’s within the him to remove unsuccessful. but was system court REVIEW & CLARK LAW LEWIS 24.4 [Vol. withdraw acknowledge and to publicly following punishment: chancellor issued the his “error.” Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM issue to set the lower courts “in motion,” but it could not correct an erroneous judg- not correct it could motion,” but courts “in lower set the to issue ment. chored their opinions on the jurisdictional question. For example, Chief Justice Justice jurisdictional question. For example, Chief chored their opinions on the university could review cases like Frend’s. Kenyon expressed his certainty that the dispositive that the exercised his judgment at all, we would have compelled him: but it is objected that he has not exercised it rightly; to this I answer that we have mandamus would only have been appropriate if the university entirely refused to refused entirely if the university been appropriate only have would mandamus hear Frend’s appeal. justice” of a lower court, justice” of a lower 42938-lcb_24-4 Sheet No. 208 Side B 02/02/2021 10:18:46 B 02/02/2021 208 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 209 Side A 02/02/2021 10:18:46

, , A

, 143 . AND , ORPUS OOD REATISE REATISE C T W

, demon- A

, G. (explaining the (explaining

ABEAS ABEAS ARRANTO IGH H W H

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Marbury v. Madison Marbury v. AMES , ROHIBITION P Marbury v. Madison

ANDAMUS United States v. Judge Lawrence v. Judge United States

M 141 144 ANDAMUS AND ANDAMUS ’s impact, as well as the early uses of the writ, as the early uses as well ’s impact, MBRACING MBRACING (Albany, W. C. Little & Co. 1880) M E

, the statutory limitations. the statutory limitations. 17–18 Marbury EMEDIES R EMEDIES OF EMEDIES R ARRANTO Justice Grose did express some reservations regarding Frend’s regarding Frend’s reservations some did express Justice Grose EGAL W L 140 EGAL L Newman, 81 U.S. (14 Wall.) 152, 165 (1871); J UO III. MANDAMUS IN THE UNITED STATES III. MANDAMUS Q at 462 (“The principal ground for granting a mandamus . . . is . . . where the . . . is . . . at 462 (“The principal ground for granting a mandamus 6 (Chicago, Callaghan & Co. 1874) (listing the elements required of mandamus in Marbury v. Madison, 5 U.S. Marbury (1 Cranch) 137, 154 (1803). Ex parte

at 461 (“I am the opinion that we have noof authority to revise the judgment given.”). at 464. The U.S. General Attorney had compel- for a writ of moved mandamus

See See United States v. Lawrence, 3 U.S. (3 Dall.) 42, 42 (1795). Id. Id. See id. 145 142 XTRAORDINARY XTRAORDINARY 1. Federal Courts’ Early Understanding of the Writ Writ the of Early Understanding Courts’ 1. Federal the United States in mandamus into Court carried The United States Supreme These companion cases offer an opportunity to understand the boundary es- the boundary to understand an opportunity cases offer These companion The law governing the use of mandamus has remained largely unchanged largely of mandamus has remained use the The law governing 143 144 E 145 140 141 142 M K ERTIORARI AND REATISE ON THE ROHIBITION ling a New York District Court judge to issue a warrant for the arrest of the captain captain the arrest of the for a warrant to issue Court judge District ling a New York the only Supreme Court opinion published before before Court opinion published the only Supreme the context of appellate the writ, especially in use of restricted strates the Court’s review. judgment pronounced is clearly an excess of the jurisdiction of the court below.”). ON the constitutional limitations, and limitations, the constitutional a nearly identical form to its roots in England. form to its a nearly identical England, such as a clear legal right and no other adequate specific relief); The following sections explain The following sections explain P T C 2020] 2020] assessing avoided ultimately Kenyon Chief Justice actions, Frend’s of disapproval discretion the university’s was within it that of that question, reasoning the merits Frend. to discipline OF MANDAMUS WRIT 1543 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

circumstances in which a court which mirrorwill grant mandamus, Lord Mansfield’s early tablished by King’s Bench that limited a superior court from overriding the ruling overriding the ruling court from superior limited a Bench that by King’s tablished that the lower to ensure The superior court could use mandamus of a lower court. the alter and further go not court could the but proper jurisdiction, court exercised the jurisdiction of the did not exceed itself as the judgment judgment so long court. banishment but stated that any appeal as to the nature of the sentence should only should only the nature of the sentence appeal as to any but stated that banishment courts. appellate the university’s be heard within articulation of the writ). articulation A. The Bounds of the Writ in the United States States United Writ in the of the A. The Bounds interpreta- consequential more of the States. One United the use in throughout its of the writ in treatment Justice Marshall’s tions lies in Chief C Y 42938-lcb_24-4 Sheet No. 209 Side A 02/02/2021 10:18:46 A 02/02/2021 209 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 209 Side B 02/02/2021 10:18:46 M K C Y solidify United States United States United States United States The parties dis- 149 addressing mandamus addressing mandamus A second reiterates that that A second reiterates 153 Bank of Alexandria Marbury In the second case, In the second 151 and denial in assess whether the insurance company was insurance the whether assess Deneale , the petitioner simply asked the court to order a lower a lower to order court asked the simply the petitioner , , the court denied a writ of mandamus that would have com- would that denied a writ of mandamus , the court The Court denied the motion, explaining that mandamus that mandamus explaining motion, the denied Court The Deneale note 144, at 25. , the petitioner asked the court to interpret the bank’s obligations the bank’s court to interpret asked the , the petitioner 146 In This understanding comports with the limits placed on mandamus placed on mandamus with the limits comports This understanding 152 147 Ultimately two of the three judges on the panel voted to deny the writ the writ voted to deny the panel the three judges on Ultimately two of supra , 150 R v. Bishop of Ely (1794) 101 267,Eng. Rep. 269; 5 T.R. 475 (KB). at 984. , the court granted mandamus ordering a former clerk of a county court court a former clerk of a county mandamus ordering court granted , the at 53. at 982–83.

IGH Id. Id. See United States v. Bank of 24Alexandria, Fed. Cas. 982, 984 (C.C.D.C. 1801) (No. Id. Id. United States v. Deneale, 25 Fed. Cas. 817, 817 (C.C.D.C. 1801) (No. 14,946). H 148 Nineteenth century treatises confirm the courts’ limited approach. One treatise One treatise approach. limited the courts’ confirm treatises Nineteenth century Two circuit court opinions published before opinions published before court Two circuit 146 147 148 149 150 151 152 153 in England, echoing Justice Grose’s treatment of the writ from the Court of King’s of King’s the Court from of the writ Grose’s treatment Justice echoing in England, Bench. mandamus’s proper purpose as an order to carry out a non-discretionary task. as an order carry out a non-discretionary to mandamus’s proper purpose entitled to buy stock, and then finally order the bank to allow the stock purchase. stock the allow to bank the order then finally buy stock, and entitled to mandamus in The court’s grant of court official to carry out a straightforward task: hand over court records. But in But in court records. straightforward task: hand over court official to carry out a Bank of Alexandria articles of incorporation, its stated in as would not issue to override the discretion of a lower court because the Court “ha[d] the Court “ha[d] because court a lower discretion of the to override issue would not any judgment, of to the dictates Judge to decide according a to compel no power but his own.” v. Deneale Alexandria register of an over recordsof wills to the to turn Virginia in Alexandria, court. probate 1544 1544 ship. French of a REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

14,514). because, as explained by Judge Cranch, the insurance company could have addressed addressed have could company the insurance Cranch, because, as explained by Judge a remedy the case, on action via an bank’s stock obligations the over its dispute used to recover property interests. traditionally also followed the writ’s history in England. The differing outcomes in the two cases, differing outcomes in the in England. The history also followed the writ’s to compel core function as a tool highlight the writ’s Circuit, the D.C. both from duties. In the first case, non-discretionary out his an individual to carry v. Bank of Alexandria buy its stock. insurance company to to allow an pelled a bank right to company held a clear as whether the insurance such factors cussed familiar at issue concerned the right whether and remedy, an alternative it had relief, whether the public. characterizes the distinction between discretionary and non-discretionary functions and non-discretionary between discretionary characterizes the distinction mandamus. governing principle” important the “most as 42938-lcb_24-4 Sheet No. 209 Side B 02/02/2021 10:18:46 B 02/02/2021 209 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 210 Side A 02/02/2021 10:18:46

. , EV R

L.

. Marbury ICH In 155 , 12 M Chief Justice Marshall Marshall Chief Justice William Marbury had had William Marbury 157 156

oned, the supreme Court shall have appellate 159 of mandamus directing the Secretary of the mandamus directing of , Section 13, and the Original Jurisdiction of the , Section 13, and the Original Jurisdiction of the (“In all Cases affecting Ambassadors, other public

a State shall be Party, the supremea State Court shall have (emphasis omitted). 443, 456 (1989) (arguing that a “better, alternative to

. ons as the Congress shall make.”). EV R

L.

note 93, at 1518–19 (arguing that Chief Justice Marshall’s note 93, at that Chief 1518–19 (arguing Justice Marshall’s . HI . art. III, § 2, cl. 2 . art. III, C supra

note 144, at 20 Marbury v. Madison and the Doctrine of Judicial Review Marbury v. Madison and the Doctrine of Judicial ONST

C supra

, Akhil Reed Amar, Marbury 154 , , 56 U. , 56 But in his view, the Act’s authorization to direct a writ of mandamus mandamus of direct a writ to authorization the Act’s view, his But in U.S. Pfander,

at 173. OOD 158 it does follow the traditional use in England. Parties could apply for man- apply for could Parties England. use in it does follow the traditional Marbury v. Madison, 5Marbury U.S. (1 Cranch) 137, 153–54 (1803). Id. Id. See, e.g. W See See ’s reading” is that Section 13 does not confer any original jurisdiction on the court, but 160 2. Article III’s Limitation 2. III’s Limitation Article take the traditional for an obstacle be proved to of the Constitution Article III Given the history of the writ in England as a source of original jurisdiction in jurisdiction of original source a as in England writ the history of the Given 157 158 159 160 154 155 156 M K Chief Justice Marshall’s traditional understanding of mandamus placed Section 13 placed of mandamus understanding traditional Marshall’s Chief Justice in conflict with Article III. 1789 Act of of the Judiciary Supreme Court Marbury rather only gives the Court another remedial tool in cases already properly before it on appeal); Edward S. Corwin, Jurisdiction . . . under such Regulati Ministers and Consuls, and those in which original Jurisdiction. In all other Cases before menti 538, 541–42 contrary to (1914) interpretation, (explaining that, Section 13 of the Marshall’s Judiciary Act did not expand the original of jurisdiction the Supreme Court). 2020] 2020] partic- a dictate not will but motion” in court inferior an “set only may mandamus ular outcome. OF MANDAMUS WRIT 1545 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

understanding of the Judiciary Act follows the useunderstanding of the Judiciary Act follows the of mandamus in eighteenth century England asked the Supreme Court to issue a writ a issue Court to Supreme asked the State to deliver his commission as a Justice of the Peace. a Justice of as his commission to deliver State on mandamus because it limits Supreme Court original jurisdiction. original Supreme Court it limits because on mandamus the Court of King’s Bench, it is only natural that Chief Justice Marshall understood is only natural the Court of King’s Bench, it Supreme of the original jurisdiction the expanding as improperly the Judiciary Act criti- since suffered has Marshall’s interpretation Court. Although Chief Justice cism, looked to Section 13 of the Judiciary Act as the source of the Court’s power to issue to issue power Court’s 13 of the Judiciary Act aslooked to Section of the the source “to any courts appointed, or persons holding office, under the authority of the the of the authority office, under any courts appointed, or persons holding “to with Section 2 ofwhich delineated the Su- conflicted Article III, States” United limited original jurisdiction. preme Court’s context, the text of this and, given King’s Bench, in instance the first damus in Court original jurisdiction: “The Supreme expansive Section 13 appears to permit Supreme Court shall . . . have power to . . . writs issue of . . . to mandamus any as a form of jurisdiction). expansive original the writ. courts appointed, or persons holding office, under the authority of the United office, under the authority of the courts appointed, or persons holding C Y 42938-lcb_24-4 Sheet No. 210 Side A 02/02/2021 10:18:46 A 02/02/2021 210 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 210 Side B 02/02/2021 10:18:46

M K L.

. (3d C Y

A , 23 , 23 supra P

3933

§ , 148 U. did not invalidate did not invalidate ROCEDURE P (2011) (“The Supreme Court’s Marbury

510

RACTICE AND RACTICE AND P 493,

. EV R

EDERAL L.

F .

A ., Marbury The Judiciary Act nevertheless remains rele- The Judiciary Act nevertheless remains P

Collateral Review of Remand Orders: Reasserting the

163 U.

Removal Jurisdiction and the All Writs Act 159

, RIGHT ET AL ET RIGHT The Federal Appellate Courts and the All Writs Act Republic of Peru, 318 U.S. 578, 582 (1943) (explaining that

W 162 ef Justice Marshall’s interpretation of Section 13, see Pfander, note 164, at 433. LAN A Ex parte

James E. Pfander, But it appears that both Sections have been incorporated into been incorporated into both Sections have that But it appears

, what uses remained for mandamus? what uses , supra 858, 859 (1969) (tracing the All Writs Act to Section 14). , 5 U.S. at 176.

165 see also HARLES L.J. a. The Evolution of § 1651 of a. The Evolution (1999);

, Griffin B. Bell, Hoffman, Marbury 16 C Marbury As explained below, the section that Congress cut out in the 1948 1948 cut out in the Congress As explained below, the section that In light of the conflict between the expansive original jurisdiction per- jurisdiction original expansive In light the between conflict of the

433

166 161 See E.g. See Judiciary Act of 1789, ch. 20, § 13, 1 Stat. 73, 81 (emphasis omitted). For a more See 28 U.S.C. § 1651(a) Act specifically mentioned (2018). In contrast, the Judiciary 164 The exact language of the Judiciary Act of 1789 does not appear in the United appear in 1789 does not Act of Judiciary the of The exact language 3. Implications for Mandamus Post- for Mandamus 3. Implications After Both Sections 13 and 14 of the Judiciary Act found their way into § 1651 of 1651 of § way into their found Act the Judiciary 14 of and 13 Both Sections 401,

164 165 166 161 162 163 . EV OUTHWESTERN States Code in its current form. Instead, § Instead, Code in its current form. generalStates assumes a more 1651 of the Code may issue of Congress established by Act tone: “The Supreme Court and all courts agreeable and respective jurisdictions of their in aid all writs necessary or appropriate law.” of and principles to the usages the current Code. Some scholars trace § 1651 to either Section 13 or Section 14 of 14 of Section Section 13 or either 1651 to § trace scholars Some Code. the current S § 1651. vant to our understanding of the statutory grant of mandamus power in its current current power in its of mandamus grant the statutory of to our understanding vant form. on thepower to issue these supervisory writs dates the Judiciary Act of 1789 and now rests from All Writs Act.”); Sections 13 and Act were14 of the the Judicial incorporated into Judiciary Code). Section 13 of the Judiciary Act as a whole. It only limited its reach in the hands of of hands its reach in the only limited a whole. It as Judiciary Act 13 of the Section still stood in power mandamus grant of Court. Because the statutory the Supreme power reveal themselves of that today, the exact boundaries stands still 1803 and the statutory text for the statute, setting the backdrop history through the English text. that law interpreting general common the itself, and mitted by the Judiciary Act and the limited original jurisdiction required by the by jurisdiction required the limited original and the Judiciary Act mitted by the enshrined 13 and Section invalidated Marshall Chief Justice Constitution, review. power of judicial

R Supervisory Role of the Supreme Court 1546 1546 States.” REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM note 93, at 1531–49. ed. 2012); Lonny Sheinkopf Hoffman, extensive explanation of Chi mandamus. Judiciary Act of 1789, ch. 20, § 13. the Judiciary Act. amendments to the U.S. Code traces back to Section 13, and the notes accompany- the notes 13, and Section Code traces back to U.S. amendments to the eliminated to avoid clear that this section was only ing the amendment make it 42938-lcb_24-4 Sheet No. 210 Side B 02/02/2021 10:18:46 B 02/02/2021 210 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 211 Side A 02/02/2021 10:18:46

28 172 See in the All the All in 169 jurisdictions, and agreeable to the and in the 1940 edition of the edition of the 1940 and in the 170 Judicial Code, ch. 231, § 234,Judicial 36 Stat. 1156 See § 262 (“The Supreme Court, the circuit courts of id.

note 167, at A144 (explaining that § note 167, at A144 (explaining that consolidates 1651 This text from Sections 13 and 14 of the Judi- 13 from Sections text This ry in view of the revised section.”). See 168

supra 173 § 716. Id. for the exercise of their respective

. 80-308, pt. 5, at A145 (1947). . 80-308, O O 171 N N

. . EP EP ng the federal courts. R R Without the influence of both Sections 13 and 14, Congress would would 14, Congress 13 and Sections of both the influence Without

b. How to Interpret § 1651 b. How to Interpret 167 . at A145 (“The special provisions . . . with reference to writs of prohibition and . . . . at A145 (“The special provisions H.R. H.R. Sections 342 and 377 directly 234 mirror Sections and 262 Code. of the Judicial See See id See Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 81–82. With regard to the Supreme Court’s power to issue writs, the Revised Statutes provided: The Judicial Code of 1911 copied the language concerning the Supreme Court exactly Congress trimmed up the wording and consolidated a few sections in 1948, sections in up the wording and consolidated a few Congress trimmed As described above, Section 13 of the Judiciary Act conferred the Supreme the Supreme Act conferred Judiciary the 13 of Section above, As described Though we do know that statutory interpretation begins with the text itself, with the begins statutory interpretation know that we do Though The Supreme Court shall have power to issue . . . writs of mandamus, in cases warranted by by cases warranted in . . to issue . writs of mandamus, shall have power Court The Supreme the principles and usages of law, to any courts appointed under the authority of the United United the of the authority appointed under courts any law, to usages of and the principles where a State, States, United the authority of the under office holding to persons States, or party. a is or vice-consul a consul or minister, public or other or an embassador, 171 172 173 167 168 169 170 M K usages and principles of law.” circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs . . . necessary U.S.C. §§ 342, 377 (1940). mandamus . . . were omitted as unnecessa appeals, and the district courts shall have power to issue all writs not specifically provided for by . . . .”). statute resulting in the version we have today in the most current edition of the Code. the most current have today in version we the resulting in not have been faced with this repetition. this faced with been not have not only was mandamus But mandamus. of writs to grant power the with Court all federal courts 14 of the Act gave Court. Section by the Supreme use limited to so long as statute, approved by if not specifically the writ, even grant to the power agreeable to and of their respective jurisdictions, “necessary for the exercise it was and usages of law.” the principles in the Judicial Code of 1911, Writs Act codified 13 Rev. Stat. § 688 (2d ed. 1878).13 Rev. Stat. § With regard to all federal courts, the statute provided: “[T]he This consolidation eliminated the section that specifically mentioned mandamus specifically mentioned eliminated the section that This consolidation in- not did however, Congress, Act. 13 of the Judiciary to Section back and traced The notes issue the writ. courts’ ability to tend for any substantive change in federal in an ef- this section was left out only clarified that the amendment accompanying up the language. fort to clean 2020] 2020] redundancy. OF MANDAMUS WRIT 1547 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM Code. United States

ciary Act appeared largely unchanged in the Revised Statutes of 1878, Statutes the Revised in unchanged largely ciary Act appeared as it appeared in the Revised Statutesof 1878. (1911). The Judicial Code added “Supreme (1911). The Judicial Code added Court” and only “Supreme slightly altered the punctuation in the section discussi the coordinating sections from the 1940 edition of the Code, including sections 342 and 377). C Y 42938-lcb_24-4 Sheet No. 211 Side A 02/02/2021 10:18:46 A 02/02/2021 211 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 211 Side B 02/02/2021 10:18:46 M K C Y Thus, Thus, De Beers 176 U.S. Alkali . and opinion. Thus, we can assume that assume that Thus, we can Marbury Marbury In the first case, 177 178 note 167, at A145 (citations omitted). U.S. v. Alkali Export Assn. . . . Assn. v. Alkali Export U.S. supra ssary” that aid federal courts “in their re- their “in courts federal that aid ssary” courts assume that Congress has considered has Congress courts assume that . 80-308, O N

. EP R

, the defendants petitioned for a writ of mandamus in the defendants petitioned for , note 144, at 10 (“While in this country the writ has been regulated supra , . .” H.R. . .” IGH H , Herman & MacLean v. Huddleston, 459 U.S. 375, 384–86 (1983); Francis v. S. , Carter v. United 530 States, 255, U.S. 266–67 (2000); Cmty. for Creative Non- see also 28 U.S.C. § 1651(a) (2018). For example, in order to understand whether or not Congress intended for for whether or not Congress intended understand to For example, in order This broad language gives courts quite a bit of leeway in interpreting the the in interpreting leeway of a bit courts quite gives language This broad Marbury v. Madison,Marbury 5 U.S. (1 168 Cranch) 137, (1803) (citing Blackstone and Lord E.g. The committee wrote: “The revised section is expressive of the construction recently See E.g. 175 174 The 1948 amendments alter our point of reference here. sub- When Congress our point of reference alter amendments The 1948 In fact, we know Congress considered developments in the courts’ use of man- of use courts’ developments in the considered Congress we know In fact, Congress likely understood this limit as implicit in the statutory text establish- statutory text the in as limit implicit this Congress likely understood 176 177 178 174 175 been abrogated.”). to a considerable extent by it enactments, has lost constitutional and statutory but few of its ancient remedial incidents, and is still governed by common law rules where such rules have not Export Ass’n v. United States Section 13 of the Judiciary Act to give the Supreme Court the power to issue writs issue the power to Court Supreme give the to the Judiciary Act 13 of Section original jurisdiction, we beyond the reach of its limited to parties of mandamus the Considering of 1789. as mandamus to the state of the lawlook to of would have of the law state undeveloped comparatively and the England in roots of mandamus from influences consider also would 1789, this inquiry States as of United in the Chief Justice Marshall demonstrated in his England, as placed upon such section by the Supreme Court in Violence v. Reid, 490 U.S. 730, 739–40Mech. (1989); Am. Soc’y of Inc. v. Eng’rs, Hydrolevel Corp., 456 U.S. 556, 569–70 (1982); Gilbert v. United States, 370 U.S. 650, 655 (1962). Consol. Mines v. U.S. . . the English history is relevant in determining the scope of mandamus power as en- mandamus power of the scope the English history is relevant in determining acted by the Judiciary Act. statute, a alters the text of stantially statutory text. developments in the law relating to that ing federal courts’ power to issue writs of mandamus. When interpreting a statute, When mandamus. of writs to issue ing federal courts’ power of enact- the time at the legal context has considered that Congress assume courts ment. damus. In the notes accompanying the 1948 amendments, it expressly endorsed the amendments, it expressly endorsed notes accompanying the 1948 damus. In the Court cases. by two 1945 Supreme approach taken limits to their own power. But there is a limit. Congress, the Supreme Court, and Supreme the is a limit. Congress, there power. But own their limits to mandamus can- least: very at the boundary ultimate an Bench provided the King’s appeal. as a substitute for an not serve

spective jurisdictions”? What exactly is “agreeable to the usages and principles of and principles to the usages “agreeable What exactly is spective jurisdictions”? law”? 1548 1548 writs nece of “all the limit exactly is what REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM Mansfield); Pac. Co., 333 U.S. 445, 449–50 (1948). in consolidating and rewording Sections 342, 376, and 377 of the 1940 edition of the 1940 377 of and 376, Sections 342, and rewording in consolidating law inter- of the common with an understanding Congress acted the U.S. Code, as of the time of revision. preting federal courts’ mandamus power 42938-lcb_24-4 Sheet No. 211 Side B 02/02/2021 10:18:46 B 02/02/2021 211 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 212 Side A 02/02/2021 10:18:46

, 188 180 185

The Alkali 183 179 , the Court As in 184 of its decision. of cemeal reviews.”). cemeal reviews.”). Finally, the Court jus- Finally, the Court 262 can, of course, not of course, 262 can, 182 , the Supreme Court had soundness appellate court review via what court review appellate De Beers to lay out the “traditional” purpose of purpose “traditional” the to lay out and by distinguishing “a mere error in the “a by distinguishing . 643, 721 (2004). Article I Tribunals, Article III Courts, and the Judicial Alkali Alkali “extraordinary writs as a means writs as a means “extraordinary of review.” EV gislative purpose to avoid pie R

L.

. The Court did reverse the district court’s order, but but order, The Court did reverse the district court’s

186 ARV asked the Court to review a preliminary injunction injunction asked the Court to review a preliminary , 325 U.S. at 202. In other words, the Court only analyzed the district court’s Court only analyzed the district court’s words, the In other

De Beers Consolidated Mines, Ltd. v. United States v. Ltd. Mines, Consolidated Beers De James E. Pfander, , 118 H 187 see De Beers

Fahey, 332 U.S. 258, 260 (1947) (“We are unwilling to utilize them as 189 at 217 (“But when a court has no judicial power to do what it purports to do—

at 216–17. at 223. at 202. at 201–02; at 203 (“The writs may not be used as a substitute for an authorized appeal; and Ex parte De Beers Consol. Mines, Ltd. v. United 325 States, U.S. 212, 217 (1945). Id. Id. Id. See id. For cases interpreting the All Writs Act as stated in the 1940 edition of the United States U.S. Alkali Exp. Ass’n 325 U.S. 196, v. United States, (1945). 198 Id. Id. Exp. Ass’n U.S. Alkali Id. It explained that appellate courts traditionally used common law writs only only law writs used common courts traditionally that appellate It explained to issue a preliminary injunction rather than the rather a preliminary injunction to issue In the second case, second case, In the 181 184 185 186 187 188 189 179 180 181 182 183 M K granted by the district court. to ensure that lower courts had not exceeded their jurisdiction and to “compel them them “compel to and jurisdiction exceeded their had not lower courts to ensure that do so.” to it is their duty when to exercise their authority when its action is not mere error but usurpation of power—the situation falls precisely within the not mere error but usurpation when its action is allowable use of § 262.”). Power of the United States only after finding that the district court had attempted to step entirely outside the the step entirely outside attempted to that the district court had only after finding scope of its authority. tified the impropriety of appellate review via common law writs by looking to the law writs of appellate review via common tified the impropriety reviews.” piecemeal the Judicial Code to “avoid legislative intent of text and

The petitioners in only Although Congress mentioned The Court thoroughly delineated the boundaries of boundaries the delineated thoroughly The Court and prohibi- mandamus, include certiorari, which writs,” law it called “common tion. 2020] 2020] to dismiss. their motion of denial court’s to seek revieworder the district of OF MANDAMUS WRIT 1549 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM ability Court used this request as an opportunity opportunity as an request used this Court of the use denounce and mandamus Code, see where, as here, the orders only on scheme permits appellate statutory review of interlocutory appeal from the final judgment, review by certiorari or other writ is not extraordinary permissible of the le in the face of the plain indication the Court expressed its disapproval of appellate review via Section 262 of the Judicial Judicial the 262 of Section review via appellate its disapproval of the Court expressed reviews, § interlocutory withholds Congress Code: “When exercise of conceded judicial power” from a “usurpation of power.” judicial power” from a “usurpation of exercise of conceded took a similar approach as it did in took a similar approach interpreted the statutory grants of mandamus power, in all of its forms, as separate in all of its forms, as separate power, of mandamus interpreted the statutory grants appeal. from an be availed of to correct a mere error in the exercise of conceded judicial power.” judicial conceded exercise of error in the be availed of to correct a mere C Y 42938-lcb_24-4 Sheet No. 212 Side A 02/02/2021 10:18:46 A 02/02/2021 212 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 212 Side B 02/02/2021 10:18:46

M K C Y Ex parte and Courts and Courts 190 (denying mandamus (denying mandamus (denying mandamus (denying

This note from Congress This Further, the notes accompa- Further, the 192 Sherman, 124 U.S. 364, 368–69 191 In re Newman, 81 U.S. (14 Wall.) 152, 169 ary Act as stated in the Revised Statutes of ntexts than courts in the United States, United in the courts ntexts than But despite the fact that King’s Bench Bench King’s the fact that despite But Ex parte 193 note 167, at A144. Cutting, 94 U.S. 14, 22 (1876) Blake, 175 U.S. 114, 117 (1899) supra In re Ex parte . 80-308, O N

. EP R Part II.

, Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 42 (1985) (“[W]e Glaser, 198 U.S. 171, because the 173 (1905) (denying mandamus Court lacked Judiciary Act of 1789, ch. 20, § 13, 1 Stat. 73, 81 n.(d). supra H.R. In re re In See See, e.g. See See In seventeenth and eighteenth century England, King’s Bench did not have a Bench century England, King’s and eighteenth In seventeenth The historical roots of the writ back in England continue to bear on this anal- bear on this to continue England back in writ roots of the The historical Dutile, 935 F.2d 61, 63 (5th Cir. 1991) (noting that mandamus is not a “substitute for 190 191 192 193 discretion. . . . if it may mandamus his interpretation, even by case can control No court in such a think it erroneous.”). For cases interpreting the Judici 1878, see a writ of mandamus. . . .”). appellate and original jurisdiction); appellate and original jurisdiction); directed to the circuit court to review a writ of error); constitution limiting its use of mandamus. Instead, King’s Bench enjoyed more free Instead, King’s Bench enjoyed more free of mandamus. use its constitution limiting corpora- as directors of officers, such inferior to command writs issue rein. It could In re appeal”). For a case interpreting the All Writs Act as stated in the Judicial Code of 1911, see Work 175,267 (Chief Justice 177 (1925)U.S. v. United States ex rel. Rives, mandamus noting that Taft “can not be used to compel or control a duty in the discharge of which by law he is given (1871) (“Power is given to this court by the Judiciary Act, under a writ of error, or appeal, to affirm or reverse the judgment or decree of the Circuit Court . . . but no such power is given under directed to the circuit court to allow a new party to the litigation to intervene and appeal). For aintervene to the litigation a new party to allow directed to the circuit court to of 1789, see the Judiciary Act case interpreting Schwab, 98 U.S. 240, 241–42 (1878) (denying mandamus directed to the district court to vacate and its preliminary injunction); (1888) (denying mandamus directed to the circuit court to vacate its removal order); substitutes for appeals.”); Roche Ass’n, 319 v. Evaporated Milk U.S. 21, 26 (1943) (“[W]hile a is to obstacles remove function of mandamus in aid of appellate jurisdiction to appeal, it may not a substitute for the prescribed by the statute.”); appeal procedure appropriately be used merely as 1550 1550 REVIEW & CLARK LAW LEWIS 24.4 [Vol. its tradi- to the courts in power intended to offer the mandamus indicates that it its roots in England. with tional form consistent well as judges in lower courts. tions, as Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM ysis because the 1948 amendments did not change the core substance of mandamus substance of change the core did not amendments 1948 the ysis because char- above, Congress As explained the Judiciary Act. by established first power as language, the an effort to trim up as 1948 amendments acterized the have also interpreted this change as inconsequential. this change have also interpreted variety of co a wider writ in could issue the of directing lower court the context doctrine. In it still adhered to a consistent nying the Judiciary Act explicitly discourage the use of mandamus as a tool to usurp usurp to as a tool mandamus use of the explicitly discourage Act the Judiciary nying su- a “[o]n a mandamus court. The notes make clear that discretion of an inferior of the inferior the discretion tribunal direct in what manner perior court will never or other error writ of a pursue instead should that parties and exercised” shall be judgment. seek correction of a lower court appeal to conclude that [Congress] apparently intended tosubstantially leave the all writs provision unchanged.”). 42938-lcb_24-4 Sheet No. 212 Side B 02/02/2021 10:18:46 B 02/02/2021 212 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 213 Side A 02/02/2021 10:18:46

) v. could

Will But the But the 194 196 (1980) (reversing the circuit –37 aid of their respective jurisdictions” aid of their respective jurisdictions” s would only issue to ensure thatensure to only issue would s of statutory grants of mandamus of grants of statutory asserting privilege); U.S. Dist. Court ( erpretations of Mandamus Mandamus erpretations of

195 note 164, at 512–13 (describing the Supreme Court’s expansive Republic of Peru, 318 U.S. 578, 578 (1943) (holding that the mandamus petition at the Supreme Court must only ask must only Court at the Supreme petition mandamus supra Marbury (drawing the distinction between cases that have the in fact been appealed to

See Ex parte Pfander, United States 287 U.S. 241, 248 (1932)); Roche v. Evaporated Milk Ass’n, 319 Part II.D–E. supra

see also Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 See The Supreme Court has interpreted the phrase, “in Ex parte Thus, in addition to the fundamental requirements of a clear right to relief and to relief and of a clear right requirements the fundamental to addition Thus, in Though it seems fairly settled that both Congress and the Court did not intend intend Court did not the and that both Congress settled fairly Though it seems 1. The Supreme Court’s Recent Use of an Expanded Approach Approach Use of an Expanded 1. The Supreme Court’s Recent Court consist- the Supreme the majority of the twentieth century, Throughout 196 194 195 M K review on appeal. review on appeal. Supreme Court may issue a writ matter is on direct mandamus not only if the prohibition or of certiorari”) by jurisdiction discretionary appeal, but also if the matter is within its “ultimate (quoting superior court and cases that are simply appealable to the superior court, though no appeal had been filed); understanding of its supervisory authority under the All Writs Act). U.S. 21, 25 (1943) as stated in the Act,All Writs 28 U.S.C. § 1651(a) that it (2018), as including any case lack of an adequate remedy, the interpretation the interpretation remedy, adequate lack of an an inferior discretion of to usurp used may not be writ that the suggest power also a post- court. And limited its case falls into unless the jurisdiction its appellate to exercise the Court Article III original jurisdiction. 2020] 2020] the override not would they that often stated Bench of King’s justices the judges, mandamu Rather, judges’ discretion. lower court OF MANDAMUS WRIT 1551 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete a final judgment. as reaching such his duties, actually carried out the judge 1/18/2021 6:25 PM

United States, 389 U.S. 90, 107 (1967) (reversing mandamus granted by the circuit court to the court’s grant of mandamus because the petitioner had the adequate remedy of appealing after final judgment); Kerr v. U.S. Dist. Court, 426 U.S. 394, 406 (1976) (affirming the circuit court’s denial of mandamus that would have directed the district court to vacate its discovery order because the petitioner had the adequate remedy of B. Federal Appellate Courts’ Modern Int Appellate Courts’ Modern B. Federal lows: what exactly constitutes an appeal? If courts may use mandamus to aid their courts may use mandamus to an appeal? If exactly constitutes lows: what refused to perform look like? If a judge exactly does this what appellate jurisdiction, obvious from an to recuse himself a duty as such of his duties, a routine function a superior relief by petitioning seek could party the aggrieved conflict of interest, binding precedent? the judge misinterpreted what if court for a mandamus. But the law? of the judge’s understanding to correct that case issue in Would mandamus be? must the precedent How “clear” question? is the line in that where If it would, to tackle similar questions. attempted Federal appellate courts have for mandamus to subsume established appellate procedure, a difficult question fol- a difficult question procedure, appellate established for mandamus to subsume may mandamus the basis that on inappropriate petitions ently found mandamus parallel to established appellate procedure. not serve as a form of appeal C Y 42938-lcb_24-4 Sheet No. 213 Side A 02/02/2021 10:18:46 A 02/02/2021 213 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 213 Side B 02/02/2021 10:18:46

M K – Ex 199 205 C Y The circuit The circuit (“[M]andamus

But variation But variation 200 , 319 U.S. at 32 206 ting information); ting information); Roche (“Procedurally, a writ of (“Procedurally, a writ of The district court de- court The district

198 an order reques BellSouth Corp., 334 F.3d 941, 965 In re ery—is surely a doubtful proposition.”). The Court seemed especially eager to pro- The Court seemed took it a step away from the traditional ap- from the traditional away it a step took 203 Though the Court did not explicitly direct the the explicitly direct Court did not Though the Cheney v. U.S. District Court for the District of Court for U.S. of District the v. Cheney District 202 Cheney In Smith, 332 Fed. App’x 734, 736 (3d Cir. 2009) 197 Justice Ginsburg, in dissent, sided with the circuit court court the circuit with dissent, sided Ginsburg, in Justice In re , here, reined-in discov 204 i.e.

Ozenne, 841 F.3d 810, 815 (9th Cir. 2018) –77. at 391. In re re In , at 376. Cheney v. U.S. Dist. Court, 542 U.S. 367, 367 (2004). at 370 (“Accepted mandamus standards are broad enough to allow a court to prevent at 403 (Ginsburg, J., dissenting) (“When parties seeking a mandamus writ decline to at 373. at 375. at 376 at 372. , two organizations sued the United States Government and Vice Presi- and Vice Government States sued the United organizations , two The Supreme Court agreed to weigh in The Supreme Court the circuit of whether on the issue See id. Id. E.g. See Id. Id. Id. Id. Id. Id. 201 2. The Circuit Courts’ Varied Approaches Courts’ Varied 2. The Circuit stat- to mandamus, traditional approach the Several circuits have also adopted Fahey, 332 U.S. 258, 260 (1946) (denying mandamus to compel the district court to vacate 204 205 206 197 198 199 200 201 202 203 (11th Cir. 2003) (reserving the use of mandamus only when the petitioner has demonstrated order allowing fees to counsel because the petitioner could appeal); (reversing the circuit court’s grant of mandamus and criticizing the circuit(reversing the circuit court’s grant of mandamus court for substituting must not be used as a mere substitute for appeal.”) (quotingmust not be used as a mere for appeal.”) Westinghouse Elec. Corp. substitute v. Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir. 1991)); 66 avail themselves of opportunities to obtain relief from the District aCourt, writ of mandamus ordering the same relief— ferred ruling on both parties’ motions to dismiss and allowed limited discovery. limited and allowed motions to dismiss onferred ruling parties’ both and drew on the traditional fundamental principles of mandamus, calling attention attention calling of mandamus, principles fundamental the traditional and drew on of relief. means alternative pursued its had not government to the fact that the court could have issued the writ. court could have issued proach. means of appeal. alternative as an it may not use ing that litigants parte its own view of the merits).

district court, which had directed the district court to vacate The government petitioned the circuit court for a mandamus directing the district circuit court petitioned the The government directing for a mandamus as a defendant. Cheney dismiss and orders its discovery vacate court to strongly suggested man- the judgment and it vacated writ, issue the to circuit court have been appropriate. would damus in broad language The Court’s 1552 1552 2004. in turn a took Court REVIEW & CLARK LAW LEWIS 24.4 [Vol. privilege. tect executive Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM a lower court from interfering with a coequal branch’s ability to discharge its constitutional branch’s ability to a lower court from interfering with a coequal substitute for a timelyU.S. Dist.mandamus cannot appeal.”) (citing Calderon v. Court, 137 F.3d 1420, 1421 (9th Cir. 1998)); court denied the petition, reasoning that the government could assert executive priv- assert executive could government the petition, reasoning that court denied the ilege. dent for violating the Federaldent for violating Act. Advisory Committee Columbia responsibilities.”). 42938-lcb_24-4 Sheet No. 213 Side B 02/02/2021 10:18:46 B 02/02/2021 213 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 214 Side A 02/02/2021 10:18:46 (2d Cir. (limiting

–69 181 (1965) (stating CTION A Patenaude, 210 F.3d 135, 141 mistakes, it is difficult to classify mistakes, or a clear “usurpation of or a clear “usurpation 208 In re Justices of the Superior Court Dep’t, Volkswagen of Am., Inc. 545 F.3d 304, In re DMINISTRATIVE A In re In Asbestos Sch. Litig., 46 F.3d 1284, 1284 (3d In re McLee v. Chrysler Corp., 38 F.3d 67, 68 ONTROL OF C The former approach conforms to mandamus’s tra- to mandamus’s approach conforms The former The following two Sections describe a few cases that The following two Sections describe see also 210 211

UDICIAL J

Zyprexa Prods. Liab. Litig., 594 F.3d 113, 122 (2d Cir. 2010) (stating 207 , In re d not exercise discretion). AFFE J

Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017). L. Queen’s Univ. at Kingston, 820 F.3d 1287, 1291 (Fed. Cir. 2016) Tsarnaev, 780 F.3d 14, 19 (1st Cir. 2015) that the mandamus is only(stating , Swift Transp. Co. v. U.S. Dist. Court, 830 F.3d 913, 916–17 (9th Cir. 2016) (stating that mandamus may issue even to correct discretionary acts, so long as the may issue even to correct discretionary (stating that mandamus

In re In re In re OUIS , , , L while others take a closer look at the merits of a case and ask if the lower ask if the closer look at the merits of a case and while others take a See E.g. E.g. See, e.g. E.g. 209 As for distinguishing between confining the district court judge to his or her her judge to his or the district court between confining As for distinguishing 211 208 209 210 207 M K Cir. 1994) (issuing the writ because the district court’s ruling contravened clear precedent). usurpation of power”); usurpation of power”); that, in the context of an appeal of a jurisdictional ruling, mandamus is only appropriate in order to “confine a lower court to the exercise proper jurisdiction”). of its proper authority and second-guessing his or her discretionary judgment, the circuits her discretionary his or second-guessing and proper authority a clear and indisputable right to relief and no other adequate means of relief. Some Some relief. of means adequate other to relief and no right indisputable and a clear made court had repeatedly whether the lower such as factors also consider circuits “appropriate un- as mandamus view courts or whether the appellate the same error der the circumstances.” exemplify each approach. approach. exemplify each 218 F.3d 11, 16 (1st Cir. 2000)); v. Damant, 486 F.3d 692, 693 (1st Cir. 2007) (citing 1994) (issuing the writ because the district court had1994) (issuing the writ because the district court expressly noted it did not analyze the merits of thecase and thus di (3d Cir. 2000) lower court had clearly abused its discretion); appropriate when the lower court its error amounted to a “clear was clearly without jurisdiction or have formulated several approaches. Some only review mandamus petitions that mandamus petitions that only review approaches. Some have formulated several authority” of judicial “pose elemental question[s] power” that even if mandamus is typically used to correct “ministerial” actions as strictly ministerial or discretionary). a “clear and indisputable right to relief or demonstrable injustice”). 2020] 2020] courts The of discretion. bit a quite with invested writ a result from inevitably does history: that mirror the English mandamus of the basic requirements do often recite OF MANDAMUS WRIT 1553 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

(stating that a writ only will issue if interpretation of the law was clearly erroneousthe lower court’s to established precedent); v.and contrary Mohawk Indus., Inc., 541 Carpenter F.3d 1048, 1054 (11th Cir. 2008) mandamus as a(sanctioning method of interlocutory appeal for discovery orders that compel disclosure of privileged information); 311 (5th Cir. 2008) (stating that the petitioner must show that it ahas “clear and indisputable right” and that the lower court clearly abused its discretion); court clearly abused its discretion by interpreting the law incorrectly, at least in the in at least the law incorrectly, by interpreting its discretion court clearly abused appellate court. view of the Rigby the use of mandamus only to correct “usurpation of judicial authority”); the district court’s ditional use, and the latter conflicts with the English history, statutory text, and statutory text, and latter conflicts with the English history, ditional use, and the subtle and subject to distinction is precedent. Further, the latter Supreme Court inconsistent interpretation. C Y 42938-lcb_24-4 Sheet No. 214 Side A 02/02/2021 10:18:46 A 02/02/2021 214 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 214 Side B 02/02/2021 10:18:46 M K C Y , had , had

215 This addi- The basis for for The basis 218 In re Gee 213 Louisiana then petitioned for for petitioned then Louisiana the court listed the two funda- two the court listed the 214 to carry out its duties rather than its duties to carry out actually granting mandamus. Despite the mandamus. actually granting appeal did not provide an adequate alterna- did not provide an adequate appeal But despite this strong disapproval for the district court’s actions actions court’s the district for disapproval this strong despite But a. The Traditional Approach: “Usurpation of Power” Power” of “Usurpation Approach: Traditional a. The Two doctors and an abortion clinic, the plaintiffs in in the plaintiffs an abortion clinic, and Two doctors 219 Gee, 941 F.3d 153, 156 (5th Cir. 2019). at 170. 212

at 157. at 156–57. at 157–58. at 159–65. at 171. . The court’s reasoning largely rested on its hesitancy to consider the merits largely rested on its hesitancy The court’s reasoning The Fifth Circuit’s restraint here strikes at the heart of the limited purpose at the heart of the limited purpose The Fifth Circuit’s restraint here strikes The court found Louisiana did hold a clear right to relief solely on the basis basis solely on the relief clear right to a hold did Louisiana The court found In re Id. Id. Id. Id. Id. Id. Id. Id. Id. In outlining the standard for mandamus, the standard In outlining 220 221 217 The Fifth Circuit employed a uniquely restrained approach to mandamus in to restrained approach a uniquely employed Circuit The Fifth The Fifth Circuit walked as close as it could to expressing its grave disapproval to expressing its could it as as close walked The Fifth Circuit 216 212 213 214 215 216 217 218 219 220 221 In re Gee In re

tional and arguably unnecessary analysis reveals the court’s strong disapproval for for the court’s strong disapproval analysis reveals unnecessary tional and arguably court also found that be- of Louisiana’s motion. The the district court’s treatment case,” an “extraordinary was an cause it tive remedy. 1554 1554 REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM of the standing challenge before offering the district court a chance to address the a chance the district court of the standing challenge before offering issues. and despite Louisiana’s satisfaction of the two fundamental elements required for of the two fundamental elements required for satisfaction Louisiana’s and despite this at it court nevertheless “exercised [its] discretion not to issue mandamus, the time.” the mandamus petition stemmed from the State of Louisiana’s motion to dismiss to dismiss motion Louisiana’s of State from the stemmed petition the mandamus motion court denied the district to ad- The but declined standing. that challenged argu- the standing acknowledging that even standing argument, dress Louisiana’s at that point standing assessing because plaintiffs for the ment posed problems merits. reaching the it from would have prevented for mandamus: only to compel the lower court for mandamus: only to compel the lower of the district court’s actions without without actions of the district court’s and the lack of an alternative remedy, and it mental elements, a clear right to relief ac- and non-discretionary between discretionary also highlighted the distinction tions. also pro- but the court to even address standing, court had refused that the district plaintiffs’ standing issues. of ceeded to offer its own extensive analysis judgment on the merits. substitute its own court’s characterization of the district court’s actions as “strange” and “extraordi- as “strange” court’s actions district of the court’s characterization discre- of its an exercise denied the writ in Circuit nevertheless the Fifth nary,” tion. a writ of mandamus seeking reversal of the denial of its motion to dismiss. denial of the seeking reversal a writ of mandamus challenged the constitutionality of Louisiana’s abortion regulations. abortion of Louisiana’s the constitutionality challenged 42938-lcb_24-4 Sheet No. 214 Side B 02/02/2021 10:18:46 B 02/02/2021 214 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 215 Side A 02/02/2021 10:18:46

232 The defend- The 225 The district court court The district In re Asbestos SchoolIn re Asbestos 224 Among other claims, the claims, the Among other 223 , the Ninth Circuit went so far Ninth Circuit , the

and was “squarely contrary to Supreme 226 228 Thus, the defendant stood to lose not only the re- the only to lose not stood the defendant Thus, Further, in looking at the merits of the claims, Judge at the merits of the claims, Judge Further, in looking 231 227 Barnes v. Sea Hawaii Rafting Barnes He fully engaged with the summary judgment record and de- He fully engaged with the summary judgment 229

b. The Expanded Approach: Use as an Appeal an Use as Approach: Expanded b. The More than 30,000 school districts brought a class action against man- class action a brought 30,000 school districts More than Asbestos Sch. Litig., 46 F.3d 1284, 1286 (3d Cir. 1994). at 1295. 222

at 1287–88. at 1288. at 1289. at 1295. at 1290. at 1295–96. . Id. Id. Id. Id. Id. Id. Id. Id. Id. Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 541–42 (9th Cir. 2018). In re Alito also considered broader policy implications, reasoning that in denying denying that in reasoning policy implications, considered broader Alito also The Third Circuit looked more closely at the merits in in the merits at looked more closely Circuit The Third In granting defendant’s petition, then-Judge Alito emphasized the extraordi- Alito emphasized the petition, then-Judge defendant’s In granting The Ninth Circuit may have been the most candid in its embrace of mandamus of candid in its embrace most been the may have Circuit The Ninth 230 223 224 225 226 227 228 229 230 231 232 222 M K Litigation class alleged that the defendants had engaged in a civil conspiracy and concerted conspiracy and engaged had defendants in a civil that the class alleged argument and based this materials asbestos-containing the use of action to promote Court precedent.” termined that, based on established precedent, no rational jury could find that the or that the de- protection, Amendment defendant’s association fell outside of First associa- of its trade to promote the allegedly activities tortious fendant intended tion. ufacturers of building products that contained asbestos. that contained of building products ufacturers ant petitioned for a writ of mandamus. of writ for a ant petitioned

denied one of the defendant’s motions for summary judgment, denied its motion motion its denied summary judgment, for motions the defendant’s denied one of its request for interlocutory appeal. and denied for reconsideration, Amendment First for the defendant’s its implications to the case due nary nature of right of free association. 2020] 2020] OF MANDAMUS WRIT 1555 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM Alito concluded that the district court judge’s “decision [lay] far outside the bounds bounds the outside [lay] far “decision judge’s court that the district Alito concluded First Amendment law” of established largely on the defendant’s association with a trade organization. with association largely on the defendant’s the defendant’s motion for summary judgment, the district court effectively inhib- the district judgment, summary for the defendant’s motion chill association also but could right of free association, ited not only the defendant’s public at large. the among as to scrutinize the facts of the underlying case, acknowledge that the state of the that the state of the underlying case, acknowledge of the the facts scrutinize as to summary judgment. of denial override the district court’s unclear, and was law sources necessary to reach a final judgment, but also its constitutional right of free right its constitutional but also judgment, final a sources necessary to reach association. In appeal. of as a means C Y 42938-lcb_24-4 Sheet No. 215 Side A 02/02/2021 10:18:46 A 02/02/2021 215 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 215 Side B 02/02/2021 10:18:46

M K 237 C Y , the , the Seeking Seeking Barnes 233 The district 234 Next, the court decided to treat to treat the court decided Next, The court found that by address- The court found that 28 U.S.C. § 1292(b) (2012) (allowing 28 U.S.C. § 239 238 Considering the uncertain state of the state of the uncertain Considering the See Next, the plaintiff sought the district district the sought plaintiff Next, the 241 235 , 889 F.3d at 527–28 n.8. The plaintiff could have

Barnes 236 Further, the court explained that the “inherent tension” the “inherent tension” explained that Further, the court 240 , 889 F.3d at 535 n.14.

at 535. at 537. at 542. at 535–36 n.15. Section 1292(a)(3) allows for of interlocutory appeals orders that at 517. at 526. The district court only “erred” because it did not anticipate the way the the way anticipate the not “erred” because it did only court The district The district court 1292(a) the had Ninth Circuit agreed,expressed the view, and that § Barnes Id. Id. Id. Id. Id. Id. Id. Id. 242 The court jumped through several hoops for the plaintiff in order to grant for the plaintiff in order to several hoops through The court jumped 237 238 239 240 241 242 233 234 235 236 may “materially advance the ultimate termination of the litigation”). the litigation”). may “materially advance the ultimate termination of (2012). appeals, with the district court’s approval, of orders involving “controlling question[s] of appeals, with the “controlling approval,law” that of orders involving district court’s ing the maintenance and cure issue in his brief, despite the lack of a proper appeal, lack of a proper despite the brief, issue in his and cure ing the maintenance notice. defendants on the the plaintiff had put appeals do not require court approval. “determin[e] the rights and liabilities of the parties” in admiralty cases. 28 U.S.C. § 1292(a)(3) 1292(a)(3) the ofrights and liabilities the in admiralty cases. 28 U.S.C. parties” § “determin[e] 1292(b). requested permission to appeal under § between admiralty law and the Federal Rules of Civil Procedure has led to disagree- has led to Civil Procedure Federal Rules of the and law between admiralty reviewing in use legal standard to the correct as to ment among the district courts and cure. maintenance pretrial requests for maintenance and cure, he moved for summary judgment three times. three summary judgment for cure, he moved and maintenance the but again 1292(a)(3), § 28 U.S.C. appeal under file an to court’s permission his request. denied district court Ninth Circuit would ultimately resolve this uncertain state of the law. In would ultimately Ninth Circuit law, it cannot be said that the district court usurped its judicial power by denying by denying usurped its judicial power district court that the be said cannot law, it let alone even abused its cure issue, and maintenance on the summary judgment “clearly district court that the concluded nevertheless The court discretion. erred.” Instead, he raised the issue in his opening brief. his opening issue in Instead, he raised the 1556 1556 worked ship he when the injuries suffered on exploded. plaintiff The REVIEW & CLARK LAW LEWIS 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

the appeal of separate orders as a petition for a writ of mandamus on the mainte- mandamus on of a writ for as a petition orders the appeal of separate issue. nance and cure court denied all three motions, explaining that any disagreement between the parties the parties between any disagreement explaining that all three motions, court denied of material facta dispute cure constituted and the amount of maintenance regarding judgment. summary precluded and thus mandamus. Though the plaintiff properly appealed other rulings in the case, he did properly appealed other rulings in Though the plaintiff mandamus. and cure. judgment on maintenance the denial of summary not formally appeal court treated mandamus and § 1292 as interchangeable mechanisms of appeal and appeal and as interchangeable mechanisms of 1292 § court treated mandamus and by English history, of mandamusin doing so, abandoned the original use established Act. statutory text of the All Writs our own U.S. history, and the 42938-lcb_24-4 Sheet No. 215 Side B 02/02/2021 10:18:46 B 02/02/2021 215 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 216 Side A 02/02/2021 10:18:46

245 But a handful of exceptions of exceptions a handful But 248 effort when filing the writ. Some filing the writ. Some effort when ll as the parties opposing mandamus mandamus ll as the parties opposing and others may secure mandamus re- mandamus secure and others may 246 Returning to the writ’s predictable roots will will Returning to the writ’s predictable roots 247 note 144, at 10. A nineteenth-century treatise even noted that “few branches of of “few branches that noted treatise even nineteenth-century A 243 supra , Part III.B. But today, the expanded approach deprives litigants of this predict- litigants of this deprives approach But today, the expanded IGH , 889 F.3d at 535. 244 H Gee, 941 170 (5th F.3d 153, Cir. 2019).

,

E.g. Id. See supra In re Barnes 28 U.S.C. § 1291 (2018). 1. Lack of Predictability 1. Lack of Predictability will litigants granting mandamus, for standard strict adhere to a If courts fail to Appellate courts’ more flexible standard for mandamus impacts the efficiency mandamus impacts for standard courts’ more flexible Appellate Providing greater predictability through a stricter doctrine will also relieve ap- stricter doctrine will also relieve through a Providing greater predictability 2. Piecemeal Appeals Appeals 2. Piecemeal the avenues for interlocutory from broadening refrain Appellate courts should 243 244 245 246 247 248 M K predictable writs. the law have been shaped into more symmetrical development, and few legal reme- few development, and been shaped into more symmetrical the law have governing than those principles” clearly defined more upon dies are administered mandamus. lief without even filing a petition. lack the ability to comfortably assess the probability of a successful petition. This petition. This successful of a the probability assess lack the ability to comfortably the part of a liti- wasted time and effort on for opportunities unnecessary presents we as petition, a such filing considers gant that the most was regarded as one of mandamus origins, earlier its petitions. In fact, in

parties nearly gamble the expense of time and litigants may present errors as grave as a refusal to consider standing yet still not standing consider to a refusal as as grave present errors may litigants mandamus, of treatment court’s the satisfy of litigation in lower courts. Specifically, the expanded approach leads to less cer- approach leads to less the expanded Specifically, in lower courts. of litigation piecemealfor avenue another yet offers litigants and for predictability tainty and Sections of these arguments. The following address each appeals. interlocutory courts, treatmentwrit among the circuit range of of the such a wide ability. With 2020] 2020] Implications C. Policy OF MANDAMUS WRIT 1557 Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM offer litigants greater certainty in both filing and opposing such petitions. and opposing filing certainty in both offer litigants greater lack the If litigants petitions. unnecessary the burden of addressing pellate courts of mandamus petition, they a of of likelihood success accurately predict the tools to appeal. Thus, a more predict- as a form of a fallback, shot-in-the-dark may file them petition for appeals. A as interlocutory judgment, known before final permit appeals an with parties presents and one of these exceptions of mandamus falls into a writ of with an expanded, lenient application appeal. But interlocutory opportunity for appeals. As a general rule, aggrieved parties must wait until the lower court has wait until the lower general rule, aggrieved parties must a appeals. As before filing an appeal. judgment reached a final able application of the mandamus standard will conserve judicial resources at both both at judicial resources conserve will standard mandamus of the able application appellate levels. the trial and C Y 42938-lcb_24-4 Sheet No. 216 Side A 02/02/2021 10:18:46 A 02/02/2021 216 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 216 Side B 02/02/2021 10:18:46 M K C Y llate court to interject over issues that may that over issues interject to llate court IV. CONCLUSION IV. CONCLUSION and one of the “most potent weapons in the judicial judicial weapons in the “most potent and one of the ) v. United States, 389 U.S. 90, 107 (1967). 249 Will Courts should view the writ as a form of internal self-regulation, but but self-regulation, of internal form a view the writ as Courts should 250 Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943). U.S. District Court ( Some federal courts’ use of mandamus has strayed from the bounds of the writ bounds of the use of mandamus has strayed from the Some federal courts’

249 250 arsenal.” established by King’s Bench, the Supreme Court in the early twentieth century, and Court in the early twentieth century, King’s Bench, the Supreme by established to ex- officer an inferior compel to only mandamus issued Bench Congress. King’s The Su- decision. discretionary that officer’s to reexamine not ercise its discretion, substitute for an appeal. should not that mandamus explained has preme Court statutory courts the granting the federal endorsed this view when Congress expressly original writ’s from the departure The courts’ mandamus. writs of power to issue for greater opportunity a and lack of predictability, a inconsistency, use leads to this tool isto the view that should return Courts appeals. interlocutory unnecessary remedy” an “extraordinary 1558 1558 for greater incentive foster ultimately courts mandamus, granting for the standard suited for post-judg- appeals that are better piecemeal file interlocutory parties to admin- the lower court’s frustrate and interrupt Piecemeal appeals ment treatment. appe ask the well as cases as its of istration REVIEW & CLARK LAW LEWIS of litigation. the course court throughout in the lower well be resolved 24.4 [Vol. Davis_EIC_Proof_Complete (Do Not Delete) Not Delete) (Do Davis_EIC_Proof_Complete 1/18/2021 6:25 PM

wholly apart from the legal issues and merits of the underlying case. and merits of the the legal issues from wholly apart 42938-lcb_24-4 Sheet No. 216 Side B 02/02/2021 10:18:46 B 02/02/2021 216 Side Sheet No. 42938-lcb_24-4