Writ of Prohibition and Writ of Mandamus
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ADMINISTRATIVE LAW PAPER CODE- 801 TOPIC- WRITS Constitutional Philosophy of Writs
CLASS- B.A.LL.B VIIIth SEMESTER SUBJECT- ADMINISTRATIVE LAW PAPER CODE- 801 TOPIC- WRITS Constitutional philosophy of Writs: A person whose right is infringed by an arbitrary administrative action may approach the Court for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of fundamental rights of an Individual. Writ is an instrument or order of the Court by which the Court (Supreme Court or High Courts) directs an Individual or official or an authority to do an act or abstain from doing an act. Understanding of Article 32 Article 32 is the right to constitutional remedies enshrined under Part III of the constitution. Right to constitutional remedies was considered as a heart and soul of the constitution by Dr. Bhim Rao Ambedkar. Article 32 makes the Supreme court as a protector and guarantor of the Fundamental rights. Article 32(1) states that if any fundamental rights guaranteed under Part III of the Constitution is violated by the government then the person has right to move the Supreme Court for the enforcement of his fundamental rights. Article 32(2) gives power to the Supreme court to issue writs, orders or direction. It states that the Supreme court can issue 5 types of writs habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of any fundamental rights given under Part III of the constitution. The Power to issue writs is the original jurisdiction of the court. Article 32(3) states that parliament by law can empower any of courts within the local jurisdiction of India to issue writs, order or directions guaranteed under Article 32(2). -
Concurring in the Dismissal of the Petition
IN THE SUPREME COURT OF TEXAS NO. 20-0430 IN RE STEVEN HOTZE, MD, HON. WILLIAM ZEDLER, HON. KYLE BIEDERMANN, EDD HENDEE, AL HARTMAN, NORMAN ADAMS, GABRIELLE ELLISON, TONIA ALLEN, PASTOR JOHN GREINER, AND PASTOR MATT WOODFILL, RELATORS, ON EMERGENCY PETITION FOR WRIT OF MANDAMUS JUSTICE DEVINE, concurring in the petition’s dismissal for want of jurisdiction. The Texas Constitution is not a document of convenient consultation. It is a steadfast, uninterrupted charter of governmental structure. Once this structure erodes, so does the promise of liberty. In these most atypical times, Texans’ constitutional rights have taken a back seat to a series of executive orders attempting to unilaterally quell the spread of the novel coronavirus. But at what cost? Many businesses have felt the impoverishing effects of being deemed, by executive fiat, “nonessential.” And many others—unemployed—found out quickly that economic liberty is indeed “a mere luxury to be enjoyed at the sufferance of governmental grace.”1 That can’t be right. While we entrust our health and safety to politically accountable officials,2 we must not do so at the expense of basic constitutional architecture. We should not, as we’ve recently said, 1 Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 92 (Tex. 2014) (Willett, J., concurring). 2 See S. Bay United Pentecostal Church v. Newsom, No. 19A1044, 2020 U.S. LEXIS 3041, at *3 (U.S. May 29, 2020) (mem.) (Roberts, C.J., concurring in the denial of injunctive relief) (citing Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905)). “abandon the Constitution at the moment we need it most.”3 I concur in the dismissal of this mandamus petition for want of jurisdiction, but I write separately to express concern over some of the issues it raises. -
15. Judicial Review
15. Judicial Review Contents Summary 413 A common law principle 414 Judicial review in Australia 416 Protections from statutory encroachment 417 Australian Constitution 417 Principle of legality 420 International law 422 Bills of rights 422 Justifications for limits on judicial review 422 Laws that restrict access to the courts 423 Migration Act 1958 (Cth) 423 General corporate regulation 426 Taxation 427 Other issues 427 Conclusion 428 Summary 15.1 Access to the courts to challenge administrative action is an important common law right. Judicial review of administrative action is about setting the boundaries of government power.1 It is about ensuring government officials obey the law and act within their prescribed powers.2 15.2 This chapter discusses access to the courts to challenge administrative action or decision making.3 It is about judicial review, rather than merits review by administrators or tribunals. It does not focus on judicial review of primary legislation 1 ‘The position and constitution of the judicature could not be considered accidental to the institution of federalism: for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which government power might be exercised and upon that the whole system was constructed’: R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 276 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). 2 ‘The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them’: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). -
Chap. 8.] REMEDIES for WRONGS in COMMON LAW COURTS
Chap. 8.] REMEDIES FOR WRONGS IN COMMON LAW COURTS. 114 writ of consullation may also be, and is frequently, granted by the court with- out any action brought; when, after a prohibition issued, upon more mature consideration the court are of opinion that the matter suggested is not a good and sufficient ground to stop the proceedings below. Thus careful has the law been, in compelling the inferior courts to do ample and speedy justice; in preventing them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction. CHAPTER VIII. OF WRONGS AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS. THE former chapters of this part of our Commentaries having been employed in describing the several methods of redressing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurisdictions of this kingdom; I come now to consider at large, and in a more particular manner, the respective remedies in the public and general courts of common law, for injuries or private wrongs of any denomina- tion whatsoever, not exclusively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury: and shall, secondly, describe the method of pursuing and obtaining these reme- dies in the several courts. -
Supreme Court of the United States
Nos. 06-1195, 06-1196 IN THE Supreme Court of the United States LAKHDAR BOUMEDIENE, ET AL., Petitioners, v. GEORGE W. BUSH, ET AL., Respondents. KHALED A.F. AL ODAH, ET AL., Petitioners, v. UNITED STATES OF AMERICA, ET AL., Respondents. On Writ of Certiorari to the United States Court of Appeals for the District of Columbia BRIEF OF LEGAL HISTORIANS AS AMICI CURIAE IN SUPPORT OF PETITIONERS Michael J. Wishnie James Oldham Hope R. Metcalf (Counsel of Record) Allard K. Lowenstein St. Thomas More Professor International Human of Law & Legal History Rights Clinic—National Georgetown University Litigation Project Law Center Yale Law School 600 New Jersey Avenue, 127 Wall Street N.W. New Haven, CT 06510 Washington, D.C. 20001 (203) 432-1660 (202) 662-9090 Jonathan Hafetz Brennan Center for Justice at N.Y.U. School of Law 161 Avenue of the Americas, 12th Floor New York, NY 10013 (212) 998-6289 August 2007 Counsel for Amici i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................ii STATEMENT OF AMICI.....................................................1 SUMMARY OF ARGUMENT .............................................1 ARGUMENT.........................................................................3 I. At Common Law, Habeas Corpus Jurisdiction Followed the Jailer, Not the Detainee, to any Territory Under the De Facto Control of the Crown...................................................3 1. Habeas writs issued directly by the King’s Bench in Westminster to persons detained outside the realm of England. .........................................................................8 2. Habeas writs issued by English law courts located in overseas territories ...................................................12 II. The Writ Provided for Meaningful and Independent Judicial Inquiry Regarding the Factual Basis for Detention, Including Consideration of Additional Evidence. ...............16 A. At common law, judicial scrutiny was greatest outside the context of post-criminal convictions..........................17 B. -
Texas Rules of Appellate Procedure
TEXAS RULES OF APPELLATE PROCEDURE Table of Contents SECTION ONE. (c) Where to File. GENERAL PROVISIONS (d) Order of the Court. Rule 1. Scope of Rules; Local Rules of Courts of Rule 5. Fees in Civil Cases Appeals Rule 6. Representation by Counsel 1.1. Scope. 6.1. Lead Counsel 1.2. Local Rules (a) For Appellant. (a) Promulgation. (b) For a Party Other Than Appellant. (b) Copies. (c) How to Designate. (c) Party's Noncompliance. 6.2. Appearance of Other Attorneys Rule 2. Suspension of Rules 6.3. To Whom Communications Sent Rule 3. Definitions; Uniform Terminology 6.4. Nonrepresentation Notice 3.1. Definitions (a) In General. (b) Appointed Counsel. 3.2. Uniform Terminology in Criminal Cases 6.5. Withdrawal (a) Contents of Motion. Rule 4. Time and Notice Provisions (b) Delivery to Party. (c) If Motion Granted. 4.1. Computing Time (d) Exception for Substitution of (a) In General. Counsel. (b) Clerk's Office Closed or Inaccessible. 6.6. Agreements of Parties or Counsel 4.2. No Notice of Trial Court’s Judgment Rule 7. Substituting Parties in Civil Case (a) Additional Time to File Documents. 7.1. Parties Who Are Not Public Officers (1) In general. (a) Death of a Party. (2) Exception for restricted appeal. (1) Civil Cases. (b) Procedure to Gain Additional Time. (2) Criminal Cases. (c) The Court’s Order. (b) Substitution for Other Reasons. 4.3. Periods Affected by Modified 7.2. Public Officers Judgment in Civil Case (a) Automatic Substitution of Officer. (a) During Plenary-Power Period. (b) Abatement. (b) After Plenary Power Expires. -
The Political Question Doctrine: Justiciability and the Separation of Powers
The Political Question Doctrine: Justiciability and the Separation of Powers Jared P. Cole Legislative Attorney December 23, 2014 Congressional Research Service 7-5700 www.crs.gov R43834 The Political Question Doctrine: Justiciability and the Separation of Powers Summary Article III of the Constitution restricts the jurisdiction of federal courts to deciding actual “Cases” and “Controversies.” The Supreme Court has articulated several “justiciability” doctrines emanating from Article III that restrict when federal courts will adjudicate disputes. One justiciability concept is the political question doctrine, according to which federal courts will not adjudicate certain controversies because their resolution is more proper within the political branches. Because of the potential implications for the separation of powers when courts decline to adjudicate certain issues, application of the political question doctrine has sparked controversy. Because there is no precise test for when a court should find a political question, however, understanding exactly when the doctrine applies can be difficult. The doctrine’s origins can be traced to Chief Justice Marshall’s opinion in Marbury v. Madison; but its modern application stems from Baker v. Carr, which provides six independent factors that can present political questions. These factors encompass both constitutional and prudential considerations, but the Court has not clearly explained how they are to be applied. Further, commentators have disagreed about the doctrine’s foundation: some see political questions as limited to constitutional grants of authority to a coordinate branch of government, while others see the doctrine as a tool for courts to avoid adjudicating an issue best resolved outside of the judicial branch. Supreme Court case law after Baker fails to resolve the matter. -
Mandamus As a Remedy for the Denial of Jury Trial Nathan A
Mandamus as a Remedy for the Denial of Jury Trial Nathan A. Forrestert The Supreme Court has consistently stated that federal appel- late courts may issue the writ of mandamus as an interlocutory remedy only under "extraordinary" circumstances," to correct a lower court order that is "not mere error but usurpation of power."2 The Court has explained that mandamus cannot serve as a substitute for normal appeal and should be available "only where '3 appeal is a clearly inadequate remedy." Nevertheless, most federal courts of appeals now routinely use mandamus to compel the lower court to conduct a jury trial.4 These appellate courts typically cite two Supreme Court deci- sions-Beacon Theatres, Inc. v Westover5 and Dairy Queen, Inc. v Wood-as authority for the proposition that the denial of a jury trial is not subject to the traditionally strict standards for the availability of mandamus. The Seventh Circuit alone has inter- preted these decisions differently, holding that mandamus is the appropriate remedy only when the petitioner would be unable to appeal effectively the district court's denial of jury trial at the con- clusion of the trial.7 Although it has had the opportunity, the Su- preme Court has not yet resolved this circuit split.8 t B.S. 1988, University of Florida; J.D. Candidate 1992, The University of Chicago. Ex parte Fahey, 332 US 258, 260 (1947) ("As extraordinary remedies, they are re- served for really extraordinary causes."). 2 De Beers ConsolidatedMines, Ltd. v United States, 325 US 212, 217 (1945). 3 Fahey, 332 US at 260. -
Administrative Agencies and Claims of Unreasonable Delay: Analysis of Court Treatment
Administrative Agencies and Claims of Unreasonable Delay: Analysis of Court Treatment Daniel T. Shedd Legislative Attorney March 21, 2013 Congressional Research Service 7-5700 www.crs.gov R43013 CRS Report for Congress Prepared for Members and Committees of Congress Administrative Agencies and Claims of Unreasonable Delay Summary One common concern about federal agencies is the speed with which they are able to issue and implement regulations. Federal regulatory schemes can be quite complex, and establishing rules and completing adjudications can sometimes require substantial agency resources and significant amounts of time. However, critics point out that sometimes an agency can simply take too long to a complete task. Commentators and courts have noted that such agency delay can impact the effectiveness of a regulatory scheme. It can also impact regulated entities that must wait for final agency action. In some circumstances, a court may have to determine whether an agency has violated the law by unreasonable delay in taking action. Substantial case law has emerged for how courts will treat agency delay in a variety of circumstances. Under the Administrative Procedure Act (APA), agency actions must be completed “within a reasonable time.” Courts have jurisdiction under the APA to hear claims brought against an agency for unreasonable delay, and the APA provides that courts shall compel any action unreasonably delayed or unlawfully withheld. When an agency has delayed, but does not have to act by any statutorily imposed deadline, courts are more deferential to the agency’s priorities and are less willing to compel an agency to take action. However, if a delay becomes egregious, courts will compel an agency to take prompt action. -
Original Jurisdiction of the Courts of Civil Appeals to Issue Extraordinary Writs
SMU Law Review Volume 8 Issue 4 Article 2 1954 Original Jurisdiction of the Courts of Civil Appeals to Issue Extraordinary Writs James R. Norvell Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation James R. Norvell, Original Jurisdiction of the Courts of Civil Appeals to Issue Extraordinary Writs, 8 SW L.J. 389 (1954) https://scholar.smu.edu/smulr/vol8/iss4/2 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. EXTRAORDINARY WRITS ORIGINAL JURISDICTION OF THE COURTS OF CIVIL APPEALS TO ISSUE EXTRAORDINARY WRITS James R. Norvell* U NDER the Texas constitutional system, the jurisdiction of both the Supreme Court and the Courts of Civil Appeals is primarily appellate in nature and such courts are not invested with general superintendence of trial courts.' Nevertheless, by the constitution and statutory enactments, they are granted the authority to issue original writs under certain circumstances. It has been pointed out that the authority and jurisdiction of the Supreme Court in this regard is much broader than that of a Court of Civil Appeals,2 and this seems readily apparent from a comparison of the constitutional and statutory provisions relat- ing to the two species of courts.' The constitutional provision *Associate Justice of the Court of Civil Appeals, Fourth Supreme Judicial District, Chairman of the Board of Trustees of the Law School of St. -
Writ of Mandamus Article
Writ Of Mandamus Article Turner is hirudinean and rainproof chiefly while mephitic Garp resembles and wallop. Eagle-eyed Geo never elegising so stately or thacks any Puseyism peskily. Fatal and half-blooded Agamemnon vitriolizes almost blindfold, though Douggie diddles his chimps tranquillized. Professionals, you will be subject to applicable taxes and you will pay any taxes that are imposed and payable on such amounts. The technicaldistinctions still remain. The act created a commission has five. Those intended it is in setting penalty has been because such remedies are negatively impacted by ruleof court has a writ of such claims for. GENERAL PROVISIONS RESPECTING OFFICERS. Settle record has demanded would violate any potential outcomes and. If successful, a court will issue his order directing the court general and all spring district attorneys to sum the information. Build your bank accounts is mandamus cannot get a writ of writs necessary for mandamus is abolished. West Virginia relators facedwith the problem of proving unreasonableness have not alwayssucceeded. AS REVIEW METHODtions and uncertainties. Defendants and intervenors object to thoserecommendations on a number of grounds. EPARTMENT OF NERGYONALD RUMPIN HIS OFFICIAL CAPACITY ASRESIDENT OF THE NITED TATESATIONAL SSOCIATION OF ANUFACTURERSMERICAN UEL ETROCHEMICAL ANUFACTURERSMERICAN ETROLEUMNSTITUTEPETITIONERSv. But i with. Each of them has a different meaning and different implications. The subject matter of discretion may itself and not lie as well as moot as judge or trial court and issue such standards governing due process is. The writ is not to comply with. As one format options, and the government misunderstands the writ of mandamus article iii standing for a return. -
Functus Officio and the Piwrogative Writ of Prohibition
FUNCTUS OFFICIO AND THE PIWROGATIVE WRIT OF PROHIBITION By Ross A. SUNDBERG* An imaginary system cunningly planned for the evil purpose of thwarting justice and maximizing fruitless litigation would copy the major features of the extraordinary remedies. For the purpose of creating treacherous procedural snares and preventing or delaying the decision of cases on their merits, such a scheme would insist upon a plurality of remedies . .l There would appear to have been a deal of unnecessary litigation occasioned by the very fine line separating the stages at which the writs of certiorari and prohibition are properly sought. The objection in point of plurality of remedies is supported by the law of functus oficio-that despite the many points of law common to certiorari and prohibition each is available at a different stage in proceedings. The scene for the discussion that follows can be set very simply: Once proceedings have begun in the tribunal, but not until they have begun, prohibition may be obtained at any time until they are finished. if the proceedings have ended, the lower tribunal is said to be functus officio and prohibition ceases to be available.2 Is this a rehement that should be retained? Is it likely to result in many cases failing to reach the merits? Have the courts done anything to minimize the procedural difficulties that could arise from the distinction? These are some of the questions to which attention should be directed. The writs have the following points in common: historically they were used to control inferior courts; they are available in respect of a body with power to determine questions affecting the rights of subjects and having an obligation to act judicially; neither goes to an administrative tribunal, or so it is said;3 they are available only when the power to determine is de- rived from statute or subordinate legislation; the rules as to standing are the same; neither writ lies against the Crown.