Writ

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In law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction. In modern usage, this public body is normally a court. Warrants, prerogative writs, and subpoenas are types of writs, but there are many others.

Early law of the United States inherited the traditional English writ system, in the sense of a rigid set of forms of relief that the law courts were authorized to grant. The All Writs Act authorizes United States federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." However, the Federal Rules of Civil Procedure, adopted in 1938 to govern civil procedure in the United States district courts, provide that there is only one form of action in civil cases, and explicitly abolish certain writs by name. Relief formerly available by a writ is now normally available by a lawsuit (civil action) or a motion in a pending civil action. Nonetheless, a few writs have escaped abolition and remain in current use in the U.S. federal courts:

  • The writ of habeas corpus, usually used to test the legality of a prisoner's detention, has expressly been preserved. In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by state courts.
  • Some courts have held that in rare circumstances in a federal criminal case, a United States district court may use the common-law writ of error coram nobis under the All Writs Act to set aside a conviction when no other remedy is available.
  • The United States district courts normally follow state-court practice with respect to certain provisional remedies and procedures for enforcement of civil judgments, which may include writs of attachment and execution, among others.

Certain other writs are available in theory in the United States federal courts but are almost never used in practice. In modern times, the All Writs Act is most commonly used as authority for federal courts to issue injunctions to protect their jurisdiction or effectuate their judgments.

The situation in the courts of the various states varies from state to state but is often similar to that in the federal courts. Some states continue to use writ procedures, such as quo warranto, that have been abolished as a procedural matter in federal courts.

In an attempt to purge Latin from the language of the law, California law has for many years used the term writ of mandate in place of writ of mandamus, and writ of review in place of writ of certiorari. Early efforts to replace writ of habeas corpus with writ of have the body never caught on.

Other writs you may see:

  • Writ of Bodily Attachment: A writ commanding law enforcement to physically bring in a person in contempt of court. Evidently, you cannot get out of this writ just by paying the fine, the court can hold you up to 48 hours to meet with the person issuing the writ directly.

Prerogative writs

The "prerogative" writs are a subset of the class of writs, those that are to be heard ahead of any other cases on a court's docket except other such writs. The most common of the other such prerogative writs are habeas corpus, quo warranto, prohibito, mandamus, procedendo, and certiorari.

The due process for petitions for such writs is not simply civil or criminal, because they incorporate the presumption of nonauthority, so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party. In this they differ from a motion in a civil process in which the burden of proof is on the movant, and in which there can be an issue of standing.

References

  • Maitland F. W. The Forms of Action at Common Law. Cambridge University Press 1962.
  • Baker, J. H. An Introduction to English Legal History. Butterworths 1990. ISBN 0-406-53101-3
  • Milsom, S. F. C. Historical Foundations of the Common Law (second edition). Butterworths 1981. ISBN 0-406-62503-4


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