Understanding the Writ of Certiorari

What is a Writ of Certiorari?

A writ, in common law, is a formal written order, specifically issued by a body with judicial or administrative jurisdiction; in modern times, these bodies are typically a court system. As a result of this definition, all warrants, subpoenas and prerogative writs are common forms of writs.

A writ of certiorari is a type of writ, which specifically seeks a judicial review; the action, in modern times, currently necessitates the issuance of an order by a higher court to direct a lower court, a public authority or tribunal to send the record in a given case for review. In the United States, a writ of certiorari is typically seen as a formal written order that the Supreme Court of the United States issues to a lower court, to affirmatively review the lower court’s judgment for legal or reversible error.

When this action is consummated, the lower court is required to review the particular case, primarily where no appeal is available, as a matter of right. This simply means that the Court system was required to issue a decision in each of those cases, as a means of preventing a backlog for the United States Supreme Court.

Writ of Certiorari according to Administrative Law:

In the context of administrative law, the common law writ of certiorari was historically used by the lower court system in the United States for judicial review of all decisions made by an administrative body or agency following an adversarial hearing. Some states have retained this policy of the writ of certiorari in the local court system, while others have replaced it with an amended statutory procedure. In the federal court system, the use of the writ of certiorari has been abolished and since replaced by a civil action under the Administrative Procedure Act in a United States district court or in some rare cases, for review in a court of appeals.

Writ of Certiorari Development:

The majority of cases cannot be appealed to the United States Supreme Court as a matter of right; this prevention was affirmed following the passing of the Judiciary Act of 1925 and the Supreme Court Case Selections Act of 1988. Any party who wishes that the Supreme Court review a decision of a federal or state court must file a petition for a writ of certiorari in the Supreme Court. The petition is printed in booklet format and 40 copies are filed with the Court system. If the Court grants the filing of the petition, the case will be schedule for the filing of briefs and then for an oral argument.

To be processed, a minimum of four of the nine Justices on the Supreme Court must grant the writ of certiorari. That being said, the court system will deny the majority of petitions and thus leave the decision to be rendered by the lower courts.

Facts about the Administrative Procedure Act

What is the Administrative Procedure Act?

The Administrative Procedure Act, officially enacted on June 11th of 1946, is a United States federal law that governs the way in which administrative agencies (positioned within the United States federal government) may propose and subsequently establish regulations.

Furthermore, the Administrative Procedure Act also created a formal process for the United States’ federal courts concerning their ability to directly review agency decisions. As a result of these fundamental reforms, the Administrative Procedure Act is regarded as one of the most important pieces of administrative law in the United States.

The Administrative Procedure Act applies to both the federal executive department, as well as the independent agencies, of the United States federal government. In essence, the Administrative Procedure Act is a bill of rights for millions of Americans whose affairs are directly related to and controlled by federal agencies of our nation’s government. The official text of the Administrative Procedure Act can be observed under Title 5 of the United States Code.

Background of the Administrative Procedure Act:

In 1933, President Franklin Roosevelt, to spark the fallen economy and further organize the governing state, enacted several statutes that created new federal agencies as a significant part of the New Deal. Shortly after the development of such agencies, however, Congress grew concerned about the expanding powers that such agencies possessed; this concern ultimately resulted in the enactment of the Administrative Procedure Act. When created, the act was designed to regulate and standardize federal agency procedures.

Basic Purposes of the Administrative Procedure Act:

Government agencies, whether funded and operating under a federal department or independent, are all unique governmental bodies, capable of exercising authority similar to all three branches of the United States federal government.

That being said, an individual agency will typically possess only the power of the branch that it operates under or that set it up; this balance of authority was instituted by the Separation of Power Doctrine, which dictates that all three powers of the federal government should not be vested in one branch. When recognized by President Roosevelt in the midst of the Great Depression, the creation and function of federal agencies may cause separation of powers issues according to the framework of the United States Constitution.

To provide a safeguard, the Administrative Procedure Act created a framework for regulating agencies and their various roles. According the legislation itself, the basic purpose of the Administrative Procedure Act is the following: 1.) require agencies to keep the public informed concerning their organization, procedures and rules; 2.) provide for public participation in the rulemaking process; 3.) establish uniform standards for the conduct of formal rulemaking and adjudication; 4.) define the scope of judicial review.

The above provisions of the Administrative Procedure Act apply to the majority of federal government agencies and institutions. An agency, as defined by the Administrative Procedure Act, is “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.” This definition does not include a number of enumerated authorities, including the President, Congress, the federal courts and governments of territories or possessions of the United States.

Due Process Clause

What is the Due Process Clause?

Due process refers to the legal principle that the government must respect all legal rights that are distributed and owed to a person according to the law. Due process affirms that the government must be subservient to the law of the land and must protect individual persons from the state. If or when a governing body harms a person without following the exact procedure of the law it triggers a due process violation, which in turn, violates the rule of law.

Furthermore, the due process clause has also been frequently interpreted as limiting legal proceedings and laws in general, so that judges, as oppose to legislators, may define and guarantee justice, liberty and fundamental fairness.

Such an interpretation has proven controversial; however, as it is analogous to the concepts of procedural and natural justice used in various legal jurisdictions throughout the United States and the world. This interpretation of the due process clause is also sometimes expressed as a command that a governing body shall not be unjust to the people or shall not abuse them in a physical nature.

The due process clause was developed from clause 39 of the Magna Carta in England; when English law gradually diverged with American law, the due process clause was not upheld in England; however, it was incorporated in the Constitution in the United States of America.

The Due Process Clause in the United States:

In the United States’ Constitution the Fifth Amendment’s guarantee of the due process clause is only applicable against actions of the federal government. Furthermore, the Fourteenth Amendment contains virtually the same phrase; however, it attaches such a regulation only to the states and Puerto Rico. As a result, these two clauses of the United States Constitution apply against state and federal actors and not against private citizens.

The due process clause, both outlined in the 5th Amendment and 14th Amendment, apply to all legal persons, meaning corporations and legal professionals, as well as to government employees. In addition to the outline in the United States Constitution, a number of state constitutions also possess their own guarantees of the due process clause that may, according to their specific terms, offer even more protection to certain individuals than under federal law.

The Due Process Clause, under the United States Constitution, restrains all three (executive, judicial and legislative) government branches. When a person is deprived of their basic civil liberties by a process that conflicts with some form of the United States Constitution, then the Due Process Clause will typically find a remedy to restore that person’s rights.

Quick Overview of Executive Agencies

What are Executive Agencies?

Also referred to as next-step departments, executive agencies are a part of a government department (in the United Kingdom and Northern Ireland) that is treated as budgetarily, as well as managerially, independent. This relationship and self-funding status is established in order to perform some part of the executive functions of the United Kingdom government, the Scottish Government, the Northern Ireland Executive or the Welsh Assembly.

In essence, executive agencies are a fundamental mechanism of the aforementioned government agencies; they are devices distinct from both non-departmental public bodies and non-ministerial government departments, whom enjoy a constitutional and legal separation from ministerial control.

Executive agencies range in size and scope; some executive agencies will employ over 100,000 people and operate under an annual budget of 4 billion pounds, while other agencies will only be comprised of a few dozen people and operate with marginal funds. The primary goal of all executive agencies is to increase efficiency and productivity within the larger governing structure.

Similar to agencies or sub-departments in the United States, executive agencies are tasked with and responsible for niche-based specialties or precise functions. The general belief of those in favor of executive agencies is that by specializing and developing separate bodies to accomplish specific tasks, funding and the allocation of human capital will be divided more appropriately among the governing structure.

Examples of Executive Agencies and the Departments in which they operate under:

Ministry of Defense:

Defense Science and Technology Laboratory

Defense Storage and Distribution Agency

Defense Support Group

Defense Vetting Agency

Ministry of Defense Police and Guarding Agency

Service Personnel and Veterans Agency

Service Children’s Education Agency

Communities and Local Government:

The Fire Service College

Ordinance Survey

Planning Inspectorate

Queen Elizabeth II Conference Centre

Business, Innovation and Skills:

Companies House

Export Credits Guarantee Department

Insolvency Service

National Measurement Office

UK Intellectual Property Office

Skills Funding Agency

Environment, Food and Rural Affairs

Animal Health

Food and Environment Research Agency

Center for Environment, Fisheries and Aquaculture Science

Marine Management Organization

Rural Payments Agency

Veterinary Laboratories Agency

Veterinary Medicines Directorate

Ministry of Justice:

The National Archives

Office of the Public Guardian

National Offender Management Service

Tribunals Service

HM Land Registry

Quick Overview of the Federal Register

What is the Federal Register?

The Federal Register is the official journal or publication of the United States federal government. The Federal Register contains the majority of routine publications and public notices of various government agencies and is compiled by the Office of the Federal Register. The publication, which is circulated daily, is printed by the Government Printing Office. There are presently no copyright restrictions on works within the Federal Register, because the publication is labeled as a work of the United States Federal Government and is therefore considered to be in the public domain.

The Federal Register was officially created in 1935 under the Federal Register Act and was subsequently improved and amended by the Administrative Procedure Act in June of 1946. As the main source of news for the agencies operating within the United States federal government, the Federal Register contains the following contents: news regarding proposed new rules and regulations; official transcripts documents and elucidating upon final rules; all changes to existing rules and notices of meetings and adjudicatory proceedings.

In essence, the Federal Register, is a means for the United States federal government to distribute their thoughts to the people; furthermore, the publication also serves as the official publication of record for all the approved acts of the United States federal government.

How is the Federal Register Formatted?

Each daily issue of the Federal Register is organized into the following four parts:

Presidential Documents Section, which contains a list of all executive orders and proclamations

A rules and regulations section, which provides policy statements and interpretations of rules issued by federal agencies

A list of proposed rules, including all petitions set forth by agencies for assistance in rulemaking, as well as other proposals

Notices, including all scheduled hearings and meetings open to public, administrative orders and grant applications

How do I Purchase the Federal Register and what is excluded from the Publication?

Not all legislation or documents created by the United States federal agencies are published in the Federal Register—the government possesses the authority to classify documents so that they are not made public. The agencies required to publish findings in the Federal Registers are only those who are mandated to promulgate regulations in the Code of Federal Regulations.

To purchase current or back copies of the Federal Register, you may contact the United States Government Printing Office—when you obtain a copy, each issue has a subscription page. Currently, a year’s subscription to the Federal Register is $929—each individual issue is priced between $11 to $33 depending on the number of pages. To obtain free copies of the Federal Register, virtually every law library associated with an American bar Association accredited law school will have a set available for reading. In addition to law schools, all federal depository libraries make the publication available for use.

The Basics of Independent Agencies

What are Independent Agencies?

An independent agency or regulatory agency is a public authority or government agency responsible for exercising a specific form of autonomous authority over some area of human or supervisory activity. The key characteristic of independent agencies is that they are funded by outside organizations or private donors and are held separately, in regards to full regulation, from other branches of the United States federal government.

The majority of independent agencies focus in the area of administrative law—the field of law that studies implements and evaluates various regulations or rulemaking procedures, in addition to codifying and enforcing such rules and regulations for the benefit of the public at large. The justification in regards to the existence of independent agencies is realized through an evaluation regarding the complexity of certain regulatory and supervisory tasks that mandate a specific set of skills or expertise.

Furthermore, independent agencies are needed to increase productivity, efficiency and to mitigate corruption or unjust acts within the United States Federal Government because there is a need for the immediate implementation of public authority in certain areas or sectors; implementing such rules or regulations without the approval or renovation offered by independent agencies, would invariably invoke drawbacks of political interference.

In addition to rulemaking and enforcing various aspects of administrative law, some independent agencies that operate alongside the United States Federal Government will perform audits or investigations of larger governmental bodies.

What kind of Authority does an Independent Agency Possess?

Independent agencies, either are part of the executive branch of the United States federal government, or possess some form of statutory authority to perform their basic functions regarding oversight from the legislative branch. Although independent agencies are separately funded and not primarily regulated by a government department or body, their actions are generally open to legal review and subsequent punishment.

The majority of independent agencies in the United States are established to oversee and regulate specific industries to ensure that a transfer of goods or the creation of a new product is distributed to and implemented on society in the safest, most equitable and least troublesome way possible. Examples of independent agencies in the United States include the Food and Drug Administration and the Interstate Commerce Commission.

Basic functions of Independent Agencies:

To ensure that independent agencies increase efficiency and productivity for the larger governing body and to ensure such improvements are undertaken in such a way that does not promote injustice, these bodies will use the following mechanisms or courses of action:

Independent agencies will provide information and procedures regarding their decision-making process in the most transparent way possible

Various procedures of consultation and participation

They will explain their actions and follow principles that promote non-arbitrary and responsive decisions

Independent agencies will arrange for review of administrative decisions rendered by courts and other bodies

Need a Name Change? Here’s How.

What is a Name Change?

A name change refers to the legal act, which allows an individual to adopt a name different than the one given at birth, through marriage or adoption. The procedure associated with a name change and the ease of getting your name changed is dependent on where you live and the associated jurisdictional laws.

In a general sense, the majority of common law jurisdictions throughout the world possess loose limitations in regards to the ease in which an individual can get their name changed. In turn; however, civil law jurisdictions are far more restrictive when it comes to processing a name change.

Name Change Process in the United States:

In the United States, state laws regulate the name change process. That being said, several federal court rulings have established precedents regarding both court decreed name changes and common law name changes—which is the process of changing your name “at will.” In most cases, an individual can undergo a name change process for any reason. The majority of states allow one to legally undergo the name change process by usage with no paperwork; however, a court order may be required for a number of institutions, such as banks or government agents to legally recognize the name change.

Although all states, with the exception of Louisiana, follow the common law there are differences in regards to acceptable requirements to initiate a name change. For instance in most cases, a court order is the most efficient way to change names, except for of course marriage. Court orders in regards to the name change process can be applied for at all state courts; when at the state court, it is mandatory to plead that the name change is not for an illegal or fraudulent purpose—such as evading a lien, warrant, debt or for the purpose of defaming someone.

When applying for a name change, the individual may be asked to give a reasonable explanation for wanting to change his or her name. In addition, a fee is typically payable and the applicant may be required to post legal notices in their town’s newspaper to announce the name change.

Quick Insight to Statutory Law

What is Statutory Law?

Statutory law is an affirmed legal code offered by a legislature or lawmaker. The laws which encompass statutory law differ from regulatory law, which are promulgated by an executive branch or common law judicial system. Furthermore, regulatory laws are typically established through precedent and offered by judges presiding over a legal matter. Statutory law is built off statutes; a statute may originate with a national legislation, state legislatures or local municipalities.

What is a Statute?

Statutes are formal written enactments of a legislative body that governs a state, city or county. Typically, statutes command, regulate or prohibit an action or declare a policy. In a general sense, they are localized laws, which govern a particular jurisdiction in the United States; the terms is primarily used to distinguish laws made by legislative bodies from case law, which are decided by courts and through regulations issued by government agencies. Regardless of their formation, all statutes of a lower jurisdiction are subordinate to a higher court system.
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In the United States, the majority of laws are created through the evaluation of a legal case; when a judge offers a verdict, his or her decision essentially becomes the law that will govern a similar case. While a judge can create laws in a common law jurisdiction, the executive branch or acting legislature can also make the law. This classification is outlined in the United States Constitution; the Constitution sets forth such a distinction under the doctrine of “Separation of Powers.”

The Constitution, through the enactment of this doctrine, reserves the authority for the legislative branch of the United States Federal Government to create laws, which primarily regulate specific issues. This ability is also transferred to the legislative bodies of individual states.

How are Statutes created?

If a legislature, whether at a state or federal level, creates a statute, it will be published as a bill; this procedure is most common in the United States and Canada—other common law countries may possess their own classifications for the publishing of various statutory laws. In most instances, when a bill is passed, it instantly becomes a law and is therefore, codified or affirmed through written documentation in a code book that will encompass various statutes.

When the statutory law becomes affirmed it effectively governs in conjunction with a per-existing case law. The statute acts as the fundamental law that must be followed, while the case law acts as the example for the precedent.

If a statute is open to interpretation, the court system may review it by executing a systemized process. In a general sense, if the language of the statutory law is ambiguous, either the court or a state agency will interpret the statute. When this process Is undertaken, the interpreting party must follow a basic set of guidelines to ensure that the overall intent of the statute is followed. This process entails the interpreting party to evaluate legislative history; once the statute is interpreted, the statute becomes the law, unless or until a legislation is enacted which amends the previously-rendered interpretation.

Guide to Legislators

What are Legislators?

• Legislators are government employees who are responsible for writing and subsequently passing laws for a governing system, such as the United States Federal Government. Legislators, primarily those who hold a spot as a legislator, are typically politicians and are often elected by the people in a democratic fashion. Legislators may institute regulations in a federal setting, such as those individuals in Congress, for a local establishment, such as various local authorities, or in a supra-national role, for example, the United Nations general Assembly. Whatever the location or administrative power, all legislators are required to institute and evaluate legal regulations or laws with a broad microscope to effectively distribute fair and equal justice for all those in a society.

• Legislators and the Legislative body in general represent the foundation for the political theory known as the separation of powers. This theory, which is what the United States’ Federal Government maintains, requires all legislators to be different individuals from the members of the judiciary and executive branch. That being said, some political systems do not adhere to this theory; for example, in the United Kingdom, the executive is formed almost exclusively from legislators, while the judiciary is predominantly independent.

What are the Duties of Legislators?

• Legislators are those individuals in a governing body that decide on policy and distribute laws, which are then carried out by a judicial or law enforcement agency. As stated before, legislators in the United States can take the form of federal representatives in Congress or local representatives acting on a city council. Whatever the jurisdictional power may be, the same fundamental duties and responsibilities are carried out these government officials on behalf of the public.

• One of the primary duties of all legislators is to review the issues that are presently affecting the public. These issues, which typically arise as a result of social shifts or the introduction of new technologies, are mitigated by regulations and the passing of laws. For instance, when the automobile was introduced as a consumer item, it was up to legislators to review the dangers and environmental impacts these machines posed to the public. Upon review of such affects, legislators passed laws to dissipate the negative externalities and affects posed by the drastic shift caused by the introduction. These laws were then subsequently amended and updated to meet evolving society. For example, more recently, a review of modern automobiles and the issues they present led to an assortment of new laws instituting various requirements for all new vehicles sold. The evolution of the automobile is just one broad example of how legislators adjust their authority and carry-out their responsibility.

• In addition to reviewing issues and creating laws based off such analysis, legislators are expected to make decisions regarding social and governmental policy. The decision-making process regarding the issues and problems they are presented with is perhaps the most fundamental role of all legislators. That being said, as public figures, it is crucial to note, that all legislators are enforced to make and decide on such rules with good moral judgment. Accepting bribes and making policy that will only benefit a certain group of individuals is considered a highly illegal action. Corruption, although present in the majority of governments, is a mechanism that slows down efficiency and productivity; a lawmaker’s behavior should reflect the trust that the people instilled in that person when they decided to elect him or her.

Everything to know about Lawmakers

What are Lawmakers in regards to Administrative Law?

Lawmakers, or legislators, are persons who write and pass laws for a governing system, such as the United States Federal Government. Lawmakers, primarily those who hold a spot as a legislator, are typically politicians and are often elected by the people in a democratic fashion. Lawmakers may institute regulations in a regional setting, such as those in the National Assembly for Wales, for a local establishment, such as various local authorities, or in a supra-national role, for example, the United Nations general Assembly. Whatever the location or administrative power, all lawmakers are required to institute and evaluate legal regulations or laws with a broad microscope to effectively distribute fair and equal justice for all those in a society.

Lawmakers and the Legislative body in general represent the foundation for the political theory known as the separation of powers. This theory, which is what the United States’ Federal Government maintains, requires all lawmakers to be different individuals from the members of the judiciary and executive branch. That being said, some political systems do not adhere to this theory; for example, in the United Kingdom, the executive is formed almost exclusively from legislators, while the judiciary is predominantly independent.

What are the Duties of Lawmakers?

Lawmakers are those individuals in a governing body that decide on policy and distribute laws, which are then carried out by a judicial or law enforcement agency. As stated before, lawmakers in the United States can take the form of federal representatives in Congress or local representatives acting on a city council. Whatever the jurisdictional power may be, the same fundamental duties and responsibilities are carried out these government officials on behalf of the public.

One of the primary duties of all lawmakers is to review the issues that are presently affecting the public. These issues, which typically arise as a result of social shifts or the introduction of new technologies, are mitigated by regulations and the passing of laws. For instance, when the automobile was introduced as a consumer item, it was up to lawmakers to review the dangers and environmental impacts these machines posed to the public. Upon review of such affects, legislators passed laws to dissipate the negative externalities and affects posed by the drastic shift caused by the introduction. These laws were then subsequently amended and updated to meet evolving society. For example, more recently, a review of modern automobiles and the issues they present led to an assortment of new laws instituting various requirements for all new vehicles sold. The evolution of the automobile is just one broad example of how lawmakers adjust their authority and carry-out their responsibility.

In addition to reviewing issues and creating laws based off such analysis, lawmakers are expected to make decisions regarding social and governmental policy. The decision-making process regarding the issues and problems they are presented with is perhaps the most fundamental role of all lawmakers. That being said, as public figures, it is crucial to note, that all lawmakers are enforced to make and decide on such rules with good moral judgment. Accepting bribes and making policy that will only benefit a certain group of individuals is considered a highly illegal action. Corruption, although present in the majority of governments, is a mechanism that slows down efficiency and productivity; a lawmaker’s behavior should reflect the trust that the people instilled in that person when they decided to elect him or her.

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