The American Bar Association and Federal Habeas Corpus

Yackle evaluates the ABA\u27s claims touching federal habeas corpus in death penalty cases. Neither the Supreme Court nor the Anti-Terrorism and Effective Death Penalty Act of 1996 embrace the ABA\u27s policy for habeas corpus

In Medias Res

It’s common in academic circles to distinguish between positive arguments (which describe things as they are) and normative arguments (which prescribe the way things ought to be). The distinction dissolves as soon as accounts of how the world works spill over into justifications for the status quo. That happens a lot, especially in discussions of theory. It happens again in David Strauss’ wonderful monograph.1 Strauss offers a succinct exposition of the constitutional system we actually observe, coupled with a powerful explanation of how and why the scheme functions as it does and genuine reassurance that, on the whole, we can and should be satisfied

The New Habeas Corpus in Death Penalty Cases

This article offers the first systematic examination of Chapter 154, United States Code, which establishes new statutory arrangements for cases in which state prisoners under sentence of death file federal habeas corpus petitions challenging their convictions or sentences. Chapter 154 was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996. Yet its provisions were made applicable only in capital cases arising from states that established qualifying schemes for providing indigent death row prisoners with counsel in state postconviction proceedings. No state’s system for supplying lawyers in state court won approval and, in consequence, Chapter 154’s rules and procedures for death penalty cases have been on hold for nearly twenty years. Recently, the Department of Justice has revised the standards that state legal services programs must satisfy. This article proceeds from the premise that some states will secure certification that their schemes conform and focuses on the interpretation the provisions in Chapter 154 should receive in the cases to which they apply. At the time of enactment, the rules and procedures in Chapter 154 were commonly said to be favorable to states responding to prisoners’ petitions. This article contends that when the provisions in Chapter 154 are interpreted sensibly and pragmatically, they do not establish especially state-friendly protocols for the conduct of capital habeas litigation. Other provisions in the 1996 Act and innovations adopted since have largely stolen the show inasmuch as they subject all habeas cases, capital and noncapital alike, to essentially the same arrangements

Parading Ourselves: Freedom of Speech at the Feast of St. Patrick

Three things are true. First, American society is now absorbed in yet another great civil rights movement, this one on behalf of gay, lesbian, and ambisexual citizens, which will lead ineluctably to the elimination of legal burdens on the basis of sexual orientation.\u27 Change will come slowly, with much backing and filling, and at an awful price measured in human pain. Intolerance for the homosexualities that exist among us, and the homosexual behavior in which many of us engage, will persist in quarters where the law cannot reach.2 Yet private homophobia, deprived of legal sanction, will ultimately be discredited and forced to the margin

Lochner: Another Time, Another Place Symposium: Lochner Centennial Conference

Professor Lynn Baker\u27s contribution to this symposium\u27 extends her longterm project both to defend and to critique the Supreme Court\u27s decisions on the scope of congressional power.2 I find this work valuable and not a little provocative. If Baker\u27s account of the decisions thus far is even partly right, the Court is poised to assume decision-making responsibility that has long been ceded to Congress. If her proposals for the future are adopted, we are in for a cataclysmic constitutional event that rivals the convulsive period when the nation confronted the judicial arrogation of authority associated (rightly or wrongly) with the decision we\u27re here to remember: Lochner v. New York.3 Concomitantly, we are faced with the same methodological masks the Lochner Court wore to conceal what it was actually about. With a few notable exceptions, the modem Court has revealed no inclination routinely to superintend state regulatory policy

Federal Banks and Federal Jurisdiction in the Progressive Era: A Case Study of Smith v. K.C. Title & Trust Co.

This is the published version

Archibald Cox and the Genius of Our Institutions In Memoriam - Celebration of the Life of Archibald

I am confident that historians will write that the trend of decisions during the 1950\u27s and 1960\u27s was in keeping with the mainstream ofAmerican history - a bit progressive but also moderate, a bit humane but not sentimental, a bit idealistic but seldom doctrinaire, and in the long run essentially pragmatic - in short, in keeping with the true genius of our institutions. 1 In the dedication of his classic work Democracy and Distrust2 to Chief Justice Earl Warren, the late John Hart Ely wrote You don\u27t need many heroes if you choose carefully. 3 For several generations of lawyers and legal academics, Archibald Cox was a hero. We chose him carefully and we chose him easily. Archie Cox was one of my heroes long before I became his colleague when I joined the Boston University Law Faculty in 1988. In the spring of 1973 he had been appointed Special Prosecutor to investigate charges of wrongdoing by officials of President Nixon\u27s Committee to Re-Elect the President with respect to the break-in at the Democratic Party National Committee Watergate offices. The mere six months he spent in that position saw him forever etched in time as the paragon of integrity and courage. I was a freshman in college during that fall. I vividly recall sitting in a dorm room with a group of friends on the night of October 20, known thereafter as the Saturday Night Massacre. A group of friends in a dorm room, likely as not talking about the Watergate crisis that continued to dominate the news with a seemingly new extraordinary development each day, were astonished when another of our number burst in to say that he had just heard on the radio that President Nixon has fired Attorney General Elliot Richardson, Deputy Attorney General William Ruckelshaus, and the Watergate Special Prosecutor, Archibald Cox

Congressional Power to Require DNA Testing

Many states fail to conduct, or even to permit, DNA testing of biological materials in circumstances in which the results might exonerate convicts under sentence of death. Senator Patrick Leahy thinks that Congress should enact a statute requiring states to provide for testing when it promises to reveal the truth. Leahy\u27s idea is sensible as a matter of policy. I mean in this Article to argue that it is also constitutionally feasible

The Exhaustion Doctrine in Federal Habeas Corpus: An Argument for a Return to First Principles

The exhaustion doctrine in federal habeas corpus contemplates not the relinquishment of federal jurisdiction to determine the merits of federal claims arising in state criminal prosecutions, but the appropriate timing of an undoubted federal power to adjudicate in due course. Simply stated, the doctrine postpones federal review until petitioners have exhausted state judicial remedies still available for the treatment of their federal claims at the time they wish to apply for federal relief. The resulting delay is justified on the twin grounds that earlier federal intervention would disrupt the orderly administration of state criminal prosecutions and deprive the state courts of their rightful part in making and enforcing federal law. The working principle, borrowed from the law of nations, is the notion of comity-the recognition that the courts of coordinate systems can and must exercise forbearance in cases in which both are interested, lest they interfere with each other, create confusion and distrust, and sacrifice the utility that comes with cooperation. To be effective, the exhaustion doctrine must be flexible. It must present the federal courts with general guidance, but permit them to appraise the circumstances in each case with sensitivity to competing interests. The doctrine is, or ought to be, a fact-oriented rule of prudence and discretion, applied on a case-by-case basis to orchestrate the exercise of federal jurisdiction in an effective manner without disrupting or displacing the work of the state courts. That, at any rate, is the theory on which the federal habeas courts have operated for a hundred years

Thoughts on Rodriguez: Mr. Justice Powell and the Demise of Equal Protection Analysis in the Supreme Court

Continuity with the Warren Court jurisprudence is not a duty but only a necessity. The necessity is not to follow precedent blindly, but to explain the reasons for departure from it and to justify, again by reason rather than personal predilection, the results reached in every case