Beyond a Reasonable Disagreement: Judging Habeas Corpus

This Article addresses ongoing confusion in federal habeas corpus doctrine about one of the most elemental concepts in law: reasonableness. The Supreme Court recently announced a new standard of reasonableness review for habeas cases, intended to raise the bar state prisoners must overcome to obtain federal relief. This new standard demands that errors in state court decisions be so profound that “no fairminded jurist could disagree” that the result is incorrect. Scholars have decried the rigid and exacting nature of this standard, but very little interpretive work has yet been done to theorize what it means and how it should work. This Article develops a theoretical framework for understanding the new habeas standard and shows that the assumptions lower courts are making about its meaning are wrong. It concludes that federal courts need more data beyond the mere possibility of fairminded disagreement to find that a decision is reasonable. The Article draws on scholarship and jurisprudence in other areas of law that employ reasonableness standards, and argues that the missing data should be supplied by examining the state adjudicative process. The case for focusing on state process in federal habeas cases is not new, but this Article represents the first argument that the new habeas standard not only permits such a focus but, in fact, requires it

RAGIONI PARTIGIANE E AGENCY DEMOCRATICA

While parties play a fundamental role within democratic systems, from a normative perspective providing a justification of parties and partisanship is all but obvious. According to this anti-partisan approach, parties and partisanship cannot be considered fully legitimate because they polarize political debates, create ideological divisions that cannot be respect-fully composed within democratic decision-making, and aim at defeating their enemies in-stead of striving for the common good. This anti-partisan perspective has been reinforced by the deliberative framework, according to which citizens should ground their claims in publicly justifiable arguments, assess political proposals on their merits, and critically dis-cuss with one another so as to identify what is best for the polity. The ideal political actors, according to this view, are independents, not partisans. In the past few years various scholars challenged this idea by holding that it does not distinguish partisanship from factional-ism. While the latter cannot be considered legitimate, the former ensures that citizens are motivated to exercise their political agency and grants discursive conditions that are necessary to publicly justify collective decisions. In this paper I will consider this defence of party spirits and claim that while it is undeniable that partisanship performs motivational and justificatory functions that are necessary for the proper working of a democratic system, it requires an account of political justification that is not compatible with traditional interpretations of deliberative ideal

Beyond a Reasonable Disagreement: Judging Habeas Corpus

This Article addresses ongoing confusion in federal habeas corpus doctrine about one of the most elemental concepts in law: reasonableness. The Supreme Court recently announced a new standard of reasonableness review for habeas cases, intended to raise the bar state prisoners must overcome to obtain federal relief. This new standard demands that errors in state court decisions be so profound that “no fairminded jurist could disagree” that the result is incorrect. Scholars have decried the rigid and exacting nature of this standard, but very little interpretive work has yet been done to theorize what it means and how it should work. This Article develops a theoretical framework for understanding the new habeas standard and shows that the assumptions lower courts are making about its meaning are wrong. It concludes that federal courts need more data beyond the mere possibility of fairminded disagreement to find that a decision is reasonable. The Article draws on scholarship and jurisprudence in other areas of law that employ reasonableness standards, and argues that the missing data should be supplied by examining the state adjudicative process. The case for focusing on state process in federal habeas cases is not new, but this Article represents the first argument that the new habeas standard not only permits such a focus but, in fact, requires it