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Copyright (c) 2011 Texas Tech University School of Law
Texas Tech Law Review

SURVEY ARTICLE: THE INCREASING USE AND IMPORTANCE OF MANDAMUS IN THE FIFTH CIRCUIT

Spring, 2011

Texas Tech Law Review

43 Tex. Tech L. Rev. 1049

Author

Danny S. Ashby, David Coale, and Christopher D. Kratovil+

Excerpt



I. Introduction: The Growth of Fifth Circuit Mandamus Decisions



Petitions for writs of mandamus are an important and common part of appellate practice in the Texas state court system, and most Texas litigators are very familiar with the process for seeking mandamus relief in state court. In sharp contrast, petitions for writs of mandamus in the United States Court of Appeals for the Fifth Circuit-and, for that matter, in the federal appellate system more generally-are far more rare than are their Texas counterparts. Grants of mandamus by the Fifth Circuit have been, until recent years, even more exotic. Indeed, federal courts grant writs of mandamus so infrequently that many Texas litigators who might eagerly seek mandamus from a Texas court of appeals seem almost unaware of the writ's availability in the federal system.



Part of the reluctance of litigants to seek mandamus in the federal system is likely attributable to the very demanding standard for obtaining such extraordinary relief. 1 The Supreme Court has explained that mandamus is reserved for "exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion." 2 Moreover, the Supreme Court also warned that federal appellate courts reviewing petitions for mandamus "must be careful lest they suffer themselves to be misled by labels such as 'abuse of discretion' and 'want of power' into interlocutory review of non-appealable orders on the mere ground that they may be erroneous." 3 Consistent with the extraordinary nature of the writ, the Supreme Court imposed ...
 
 
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