Shadow Law: Reasonable Unreasonableness, Habeas Theory, and the Nature of Legal Rules

Abstract:     
The article explores from both doctrinal and theoretical perspectives the interpretation of 28 U.S.C. 2254(d)(1), a section of the Antiterrorism and Effective Death Penalty Act of 1996 that severely curtailed the scope of federal habeas corpus review of state court convictions. The article argues that Congress intended 2254(d)(1) to dramatically change habeas law by codifying an extraordinarily deferential reasonableness standard of review imported from the law of qualified immunity. This interpretation, while controversial, was precisely how five members of the Supreme Court viewed the meaning of the statute in Williams v. Taylor, 529 U.S. 362 (2000), which was decided after this article was published. While this "reasonable unreasonableness" interpretation is, from the author's perspective, objectionable on both constitutional and political grounds, the article contends that we benefit from broader insights by acknowledging the drastic nature of Congress's "reform." The article then contends that 2254(d)(1) establishes a regime of shadow law, where federal and state courts carry out the articulation of constitutional principle in parallel, but distinct, universes. It maintains first that under this interpretation the new act fails to advance any of the conventional theories justifying federal habeas review. It further suggests that this interpretation of the act will result in impaired deliberation and dialogue about important constitutional principles, diminish state courts' accountability for federal law decision making, and undermine any deterrent value federal collateral review of state court decisions might serve. These implications, in turn, suggest that there are problems associated with the statute that may not be discovered through conventional doctrinal analysis.

Number of Pages in PDF File: 100

Keywords: Federal courts, habeas corpus, federalism, criminal procedure, constitutional rights, legal rules

Accepted Paper Series