Habeas for the Twenty-First Century, Chapter One

20 Pages Posted: 4 Dec 2009 Last revised: 5 Apr 2011

See all articles by Nancy J. King

Nancy J. King

Vanderbilt University - Law School

Joseph L. Hoffmann

Indiana University-Bloomington, Maurer School of Law

Date Written: 2011


This is the table of contents and introductory chapter of a forthcoming book published by the University of Chicago Press, about the future of the federal writ of habeas corpus. The book provides a compact, accessible, yet comprehensive history and analysis of habeas corpus in all of its diverse applications, an analysis that is based on the latest empirical research of habeas litigation in federal courts, and includes specific recommendations for reform. By examining how habeas has been applied to review pretrial detention, civil commitment, immigration and military detention, capital and non-capital state convictions and sentences, federal criminal judgments, and administrative decisions by prison and parole officials, the book exposes striking patterns that are not easily seen when the writ is viewed only in a single context or at a single moment in time. Two principles emerge to guide future modifications of the habeas remedy: Habeas must remain a flexible remedy so that it will be available, whenever it is needed, to provide judicial review during times of crisis; and habeas must be exercised prudently as a tool of last resort, used only so long as is absolutely necessary, until alternative review mechanisms take shape. This introductory chapter contrasts the remarkable story of the writ’s liberation of a Guantanamo detainee with the unremarkable saga of habeas litigation by a typical state prisoner, and previews some of the book’s specific proposals for reform.

Keywords: habeas, federal courts, Guantanamo, civil commitment, immigration, death penalty, criminal procedure

Suggested Citation

King, Nancy J. and Hoffmann, Joseph L., Habeas for the Twenty-First Century, Chapter One (2011). University of Chicago Press, 2011. Available at SSRN: https://ssrn.com/abstract=1517840

Nancy J. King (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
(615) 343-9836 (Phone)
(615) 322-6631 (Fax)

Joseph L. Hoffmann

Indiana University-Bloomington, Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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