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Articles 1 - 15 of 15
Full-Text Articles in Law
Prisoners And Habeas Privileges Under The Fourteenth Amendment, Lee B. Kovarsky
Prisoners And Habeas Privileges Under The Fourteenth Amendment, Lee B. Kovarsky
Lee Kovarsky
The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes. The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment’s Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment’s Privileges and Immunities Clause (“PI Clause”) guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas …
Federal Habeas Corpus: Executive Detention And Post-Conviction Litigation, Brandon Garrett, Lee Kovarsky
Federal Habeas Corpus: Executive Detention And Post-Conviction Litigation, Brandon Garrett, Lee Kovarsky
Lee Kovarsky
This casebook is the first to cover federal habeas corpus comprehensively, presenting post-conviction review and executive detention litigation in an accessible way. It is designed both for standalone courses on habeas corpus, and for courses focusing on post-conviction litigation, wrongful convictions, and national security detention. The first two chapters introduce students to the habeas privilege and the Suspension Clause. A four-chapter unit on post-conviction litigation carefully explores cognizability, procedural doctrines, and merits adjudication. Two chapters develop the role habeas plays in review of immigration and other types of civil detention. A substantial two-chapter unit examines habeas review of military custody.
A Constitutional Theory Of Habeas Power, Lee B. Kovarsky
A Constitutional Theory Of Habeas Power, Lee B. Kovarsky
Lee Kovarsky
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 …
Death Ineligibility And Habeas Corpus, Lee B. Kovarsky
Death Ineligibility And Habeas Corpus, Lee B. Kovarsky
Lee Kovarsky
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 …
Habeas Verité, Lee B. Kovarsky
Habeas Verité, Lee B. Kovarsky
Lee Kovarsky
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.
Tolls On The Information Superhighway: Entitlement Defaults For Clickstream Data, Lee B. Kovarsky
Tolls On The Information Superhighway: Entitlement Defaults For Clickstream Data, Lee B. Kovarsky
Lee Kovarsky
This paper addresses the collection of "clickstream data," and sets forth a theory about the legal rules that should govern it. At the outset, I propose a typology for categorizing privacy invasions. A given state of informational privacy may be represented by: the observed behavior, the collecting agent, and the searching agent. Using this typology, I identify the specific sources of concern about collection of clickstream data. Then, based on expected levels of utility and expected transaction costs of "flipping" to a different rule, I argue for a particular set of privacy defaults for data mining.
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Lee Kovarsky
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.
A Constitutional Theory Of Habeas Power, Lee B. Kovarsky
A Constitutional Theory Of Habeas Power, Lee B. Kovarsky
Lee Kovarsky
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 quantum …
Original Habeas Redux, Lee Kovarsky
Original Habeas Redux, Lee Kovarsky
Lee Kovarsky
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 …
Original Habeas Redux, Lee B. Kovarsky
Original Habeas Redux, Lee B. Kovarsky
Lee Kovarsky
In "Original Habeas Redux," I map the modern dimensions of the Supreme Court’s most exotic jurisdiction—the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction. Scrambling to understand how the authority has evolved since its …
Death, Ineligibility And Habeas Corpus, Lee B. Kovarsky
Death, Ineligibility And Habeas Corpus, Lee B. Kovarsky
Lee Kovarsky
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 (Imaginary) Purposes, Lee B. Kovarsky
Aedpa's (Imaginary) Purposes, Lee B. Kovarsky
Lee Kovarsky
Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …
Aedpa's (Imaginery) Purposes, Lee B. Kovarsky
Aedpa's (Imaginery) Purposes, Lee B. Kovarsky
Lee Kovarsky
Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …
Aedpa's (Imaginary) Purposes, Lee B. Kovarsky
Aedpa's (Imaginary) Purposes, Lee B. Kovarsky
Lee Kovarsky
Bearing the scars of a ferocious half-century battle over habeas reform, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) has become less a legal text than a force of nature. Ignoring that statutory language limits perceived legislative purposes as much as it embodies them, federal courts have transformed what should be text-bound interests into unconstrained judicial fetishes. In (Michael) Williams v. Taylor, the Supreme Court announced that Congress intended for AEDPA to vindicate “principles of comity, finality, and federalism,” and that proposition has become a sacred cow of modern habeas jurisprudence. While habeas scholarship has been critical of the …
A Technological Theory Of The Arms Race, Lee B. Kovarsky
A Technological Theory Of The Arms Race, Lee B. Kovarsky
Lee Kovarsky
Although the 'technological arms race' has recently emerged as a vogue-ish piece of legal terminology, scholarship has quite conspicuously failed to explore the phenomenon systematically. What are 'technological' arms races? Why do they happen? Does the recent spike in scholarly attention actually reflect their novelty? Are they always inefficient? How do they differ from military ones? What role can legal institutions play in slowing them down? In this Article I seek to answer these questions. I argue that copyright enforcement and self-help represent substitutable tactics for regulating access to expressive assets, and that the efficacy of each tactic depends on …