« The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote" | Main | Could charter schools within the prison system help reduce recidivism? »

January 26, 2015

"Beyond a Reasonable Disagreement: Judging Habeas Corpus"

The title of this post is the title of this notable new article by Noam Biale now available via SSRN. Here is the abstract:

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 be used.

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.

January 26, 2015 at 09:51 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Beyond a Reasonable Disagreement: Judging Habeas Corpus":


Trial courts are in many cases incompetent and uneducated. Habeas is for the common people and "pro-se" or sui-juris should be recognized to have their say. Bar card attorney's work for the court system and can no longer be trusted to fairly represent a client. Juror's must be educated on their duties without influence from DA's (prosecutors) or judges.

Posted by: LC in Texas | Jan 27, 2015 3:57:58 PM

The Supreme Court case out of Missouri last week was indicative of the value of court appointed counsel on habeas cases. These two schmucks did not go meet their death row client for six months or more and the time lapsed to file his petition. Eric Butts was the name of one counsel and something HorrorWitz the name of the other appointed counsel.

Posted by: Liberty1st | Jan 28, 2015 12:27:58 PM

Well, the lawyers who brought that case to the USSC's attention also act as court-appointed counsel in many habeas cases. So while I don't disagree that the quality of counsel in capital cases in general is often appalling, it's not like good lawyers don't exist in this field...

Posted by: anon | Jan 28, 2015 2:41:04 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB