- Prerogative writ
Prerogative writs are a class of writs which originate from
English law. Originally they were available only to the Crown, but later they were made available to the king's subjects through the courts.
The prerogative writs are:
scire facias" (C.J. Antieau, The Practice of Extraordinary Remedies: Habeas Corpus and the Other Common Law Writs, Vol. II, at 802 ("Once known as a prerogative writ, scire facias is now better described as one of the extraordinary writs") (1987)
England and Wales
The prerogative writs are a means by which the Crown, acting through its courts, effects control over inferior courts or public authorities throughout the kingdom. The writs are issued in the name of the Crown, who is the nominal
plaintiff, on behalf of the applicant.
The prerogative writs other than "
habeas corpus" are discretionary remedies, and have been known as prerogative orders in England and Walessince 1938. The writs of "quo warranto" and "procedendo" are now obsolete, and the orders of "certiorari", "mandamus" and "prohibition" are under the new Civil Procedure Rules 1998known as "quashing orders," "mandatory orders" and "prohibiting orders" respectively.
The writ of "habeas corpus" is still known by that name.
In the United States federal court system, the issuance of writs is authorized by U.S. Code, Title 28, Section 1651. The language of the statute was left deliberately vague in order to allow the courts flexibility in determining what writs are necessary "in aid of their jurisdiction". Use of writs at the trial court level has been greatly curtailed by the adoption of the
Federal Rules of Civil Procedureand its state courtcounterparts, which specify that there is "one form of action".
Nevertheless, the prudent litigator should familiarize himself or herself with the availability of writs in the jurisdiction in which he or she is admitted to practice.
"Quo warranto" and "procedendo" are largely obsolete.
"Habeas corpus" still exists, of course, but its availability has been narrowed over the years at both federal and state levels.
Supreme Court of the United Statesgrants "certiorari", while most state supreme courts grant "review".
"Mandamus" has been replaced in the
United States district courts and many state trial courts by injunction. In the federal system, it is generally available only to the federal courts of appeals, which issue writs of mandamus to lower courts and administrative hearing panels, while some state systems still allow trial courts to issue writs of "mandamus" or "mandate" directly to government officials.
"Prohibition" is also generally limited to appellate courts, who use it to prevent lower courts from exceeding their jurisdiction.
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