Re: Marbury

[Louise Weinberg]

Dear Sandy,
        It is a mystery.  Bloch suggests that Marbury might well have been a Federalist plot, and Marshall might well have been in on it.  Mission accomplished, further action would have been unnecessary.  Another line of argument notices that the state courts were open.  Shugerman has argued recently that a contemporaneous Maryland case by Maryland judges similar in position to the ousted federal circuit judges, would have discouraged the Marbury plaintiffs.  I touch on both theories in one section of my forthcoming Virginia piece on Marbury.  But my focus in that brief segment is on the choice of forum for the motion for mandamus in 1801, rather than on the absence of post-Marbury litigation in 1803.
Best,
Louise

At 06:06 PM 8/19/03, you wrote:

How interesting!  So does this lend support to the "realist" as to why Marbury didn't seek the "justice" that Marshall's own opinion said he was entitled to (though not from the SC)?

sandy

At 05:41 PM 8/19/2003, you wrote:

August 19, 2003
Dear Sandy,
        The Circuit Court in Washington, D.C. had jurisdiction ~ which had survived the Repeal Act of 1802.  Susan Bloch recently wrote a piece about this.  This court also had explicit mandamus power for cases against federal officials,  power the Supreme Court would go on to hold exclusive.
Best,
Louise

At 05:05 PM 8/19/03, you wrote:

He did not.  As is true of everything else about Marbury, there's a debate between legal realists--i.e., he didn't because it would have disserved the interests of the Federalist Party--and legalists--he didn't because in fact there was no lower court that had jurisdiction.

sandy

At 04:04 PM 8/19/2003, you wrote:

            I apologize if this question is old hat to many of you.  Does anyone know off the top of his or her head if Marbury sought a writ of mandamus in a lower court after losing in the Supreme Court?  Thank you in advance for any help on this issue.

 

            Mike Allen

 

Michael P. Allen

Assistant Professor of Law

Stetson University College of Law

1401 61st Street South

Gulfport, FL 33707

Phone:  (727) 562-7360

Fax:      (727) 347-3738

email:     [EMAIL PROTECTED]