Re: Marbury
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]
Re: Marbury
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]
Re: Marbury
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]
Re: Marbury
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]
Re: Marbury
We seem to have this discussion every year or so -- but it is a discussion worth having every year or so. To summarize my takeaway from those discussions and some additional research and reflection. In 1813, the Supreme Court held that the federal circuit courts created by the Judiciary Act of 1789 lacked jurisdiction to issue writs of mandamus. McIntire v. Wood, 11 US 504 (1813). And in 1821, the Supreme Court held that state courts similarly lacked jurisdiction to issue writs of mandamus to federal officials. McClung v. Silliman, 19 US 598 (1821). Thus both the state courts and the federal courts created by the Judiciary Act of 1789 would have been unavailable. In 1838, the Supreme Court found that there was one court in the nation with such mandamus jurisdiction: the circuit court for the District of Columbia --- a court created by the Act of Feb. 27, 1801. Kendall v. US, ex rel. Stokes [no known relation to Mike Paulsen], 37 US 524 (1838). I find the Kendall opinion rather unpersuasive, relying as it does on the DC court inheriting the powers of MD courts, and the reference in the Feb. 27, 1801 Act to the powers of the quickly-abolished circuit courts that had been created by the Act of Feb. 13, 1801. And even in 1838, Kendall was decided over three dissents. There is considerable reason to doubt that Kendall would have come out the same way in 1803 if Marbury had brought suit in the Circuit Court for the District of Columbia -- bearing in mind that that court was court created on February 27, 1801, along with the authorization for justices of the peace for DC. Indeed, if Marbury were to file such an action in that court, Congress could have reacted by abolishing that court. After all, Congress did abolish the other circuit courts that had been created in February of 1801. As the losing counsel in Kendall put it: When was the jurisdiction, if ever, given? It is said in 1801, before the case of Marbury v. Madison. The circuit court had the jurisdiction then, if it has it now; and this Court was not unacquainted with its jurisdiction, nor were the learned and experienced counsel of Marbury. It is asked, why, when every question of law necessary for his success was settled by this Court, was not the application made there then? 37 US at 553. I find it plausible to think that learned and experienced counsel would conclude that bringing such an action would be a loser (Kendall coming some 35 years later), while I find the conspiracy theory as plausible as most conspiracy theories. Ed Hartnett Seton Hall Louise Weinberg [EMAIL PROTECTED]To: [EMAIL PROTECTED] UTEXAS.EDU cc: Sent by: Discussion Subject: Re: Marbury list for con law professors [EMAIL PROTECTED] .ucla.edu 08/19/03 09:34 PM Please respond to Discussion list for con law professors 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
