Writ
In modern legal practice, a writ is a formal, written order issued by a court "directing a person to take, or refrain from taking, a certain act."[1] Examples of frequently used writs include prerogative writs, subpoenas and warrants.
History of United States Writ Law
In the United States, writs are a remnant of the English common law system. The All Writs Act, a United States federal statute initially codified in the Judiciary Act of 1789, grants U.S. federal courts the subject-matter jurisdiction to grant common law writs as long as their issuance is "necessary or appropriate in aid of [the court's] respective jurisdictions and agreeable to the usages and principles of law."[2] In modern practice, the All Writs Act is used when a legislative scheme is incomplete or unclear.[3][4] However, the Federal Rules of Civil Procedure, adopted in 1938 to govern civil proceedings in United States district courts, has abolished particular writs by name.[5] As such, relief previously available under the writ system is now governed by the Federal Rules of Civil Procedure.
Prerogative Writs
Prerogative writs, also referred to as extraordinary writs or extraordinary remedies, are orders "issued by a court exercising unusual or discretionary power."[6] Today, U.S. courts issue prerogative writs for cases in which regular legal remedies have failed.
The writs that fall under the prerogative writ heading include:
- The writ of habeas corpus, Latin for "that you have the body," is used to review the constitutionality of criminal convictions rendered by state courts.[7] A writ of habeas corpus directs law enforcement officials to bring the petitioner they are holding before the court so that the court may determine whether any aspect of the petitioner's arrest, trial or sentence violated U.S. federal law.[8]
- The writ of certiorari is an extraordinary order issued by an appellate court when it has the power to decide whether or not to hear an appeal from a lower court.[9] This writ is most commonly associated with the U.S. Supreme Court.
- A writ of mandamus directs a public body, a government official or a lower court to perform a specific action.[10] A writ of prohibition, the counterpart to the writ of mandamus, prohibits a public authority from carrying out a particular action. This writ is often issued by an appellate court to a lower court, directing the lower court to desist from a proposed action.[11]
- A writ of quo warranto is issued when the state challenges the legality of the use of a public office, charter, or other right that can be held or used under authority of the state. For instance, a writ of quo warranto may be used to nullify an illegal municipal charter amendment or to remove an individual who illegally holds public office.[12]
- A writ of procedendo is an order from an appellate court to a lower court to proceed with judgment. This writ is used in cases where a delay in rendering judgment constitutes a neglect or denial of justice.[13]
Other Writs
- A writ of execution is issued after a plaintiff is awarded damages in a civil case. This writ directs a law enforcement officer to seize the property of the defendant in order to obtain the funds necessary to pay the plaintiff the judgment debt.[14]
- In modern law, a writ of attachment is a prejudgment process in which the court orders the seizure of a defendant’s property to satisfy a judgment. The writ of body attachment, a type of attachment writ, directs law enforcement to physically escort a person to court who is guilty of contempt of court.[15][16]
Other writs exist in the U.S. legal system; however, in many instances, writs no longer play a significant role in criminal proceedings, because the Federal Rules of Appellate Procedure provide alternative avenues to obtain the same relief. Furthermore, many writs, such as the the writ of error, have been abolished in civil cases by the Federal Rules of Civil Procedure.[17]
See also
External links
Footnotes
- ↑ United States Courts, "Glossary of Legal Terms," accessed December 22, 2015
- ↑ Legal Information Institute, "28 U.S. Code § 1651 - Writs," accessed December 22, 2015
- ↑ Hoffstadt, B. (2002). "Common-Law Writs and Federal Common Lawmaking on Collateral Review". Northwestern University Law Review. (pages 1460-1461)
- ↑ The Legal Dictionary, "Casus omissus," accessed December 23, 2015
- ↑ Legal Information Institute, "Rule 60. Relief from a Judgment or Order," accessed December 22, 2015
- ↑ U.S. Legal, "Extraordinary Writ Law and Legal Definition," accessed December 22, 2015
- ↑ Legal Information Institute, "Habeas Corpus," accessed December 23, 2015
- ↑ Columbia Human Rights Law Review, "A Jailhouse Lawyer's Manual Appendix VI: Definitions of Latin Words Used in the JLM," accessed December 22, 2015 (page 1075)
- ↑ U.S. Legal, "Certiorari Law and Legal Definition," accessed December 22, 2015
- ↑ Legal Information Institute, "Mandamus," accessed December 22, 2015
- ↑ Batten, D. (2010). Gale Encyclopedia of American Law: 3rd Edition, Volume 10. Detroit, MI: Gale. (page 463)
- ↑ Legal Information Institute, "Quo warranto," accessed December 22, 2015
- ↑ U.S. Legal, "Writ of Procedendo Law and Legal Definition," accessed December 22, 2015
- ↑ U.S. Legal, "Writ of Execution and Legal Definition," accessed December 22, 2015
- ↑ U.S. Marshals Service, “Service of Process: Writ of Assistance,” accessed December 22, 2015
- ↑ U.S. Marshals Service, “Service of Process: Writ of Body Attachment,” accessed December 22, 2015
- ↑ Legal Information Institute, "Writ of error," accessed December 22, 2015
