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Full-Text Articles in Law
A Constitutional Theory Of Habeas Power, Lee B. Kovarsky
A Constitutional Theory Of Habeas Power, Lee B. Kovarsky
Faculty Scholarship
Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as 'lawful' custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. 'A Constitutional Theory of Habeas Power' is an inquiry into the newly minted principle that the federal Constitution guarantees some …
Original Habeas Redux, Lee B. Kovarsky
Original Habeas Redux, Lee B. Kovarsky
Faculty Scholarship
This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant state …
Habeas Verité, Lee B. Kovarsky
Habeas Verité, Lee B. Kovarsky
Faculty Scholarship
Three recent books from varied academic disciplines demonstrate that habeas is as much about power as it is about liberty - the power of some judges over other magistrates, the power of the judiciary over coordinagte governing institutions, and the power of dominant political coalitions ovefr the opposition.
"Displaced By A Force To Which They Yielded And Could Not Resist": A Historical And Legal Analysis Of Mayor And City Counsel Of Baltimore V. Charles Howard Et. Al, Matthew Kent
Legal History Publications
The experience of the Baltimore Police Commissioners is instructive in understanding the state of affairs in Baltimore during the Civil War era. The removal of the commissioners by the Union Army and the subsequent civil trial, The Mayor and City Council of Baltimore v. Charles Howard, provides a window through which one may examine the historical, legal and political circumstances of the time. The legal status of the commissioners also sheds light on modern legal doctrine related to the detention of American citizens as “enemy combatants” without the benefit of certain constitutional guarantees. By analyzing the Howard case with a …
Death Ineligibility And Habeas Corpus, Lee B. Kovarsky
Death Ineligibility And Habeas Corpus, Lee B. Kovarsky
Faculty Scholarship
I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Faculty Scholarship
Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.