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Beyond a Reasonable Disagreement: Judging Habeas Corpus

55 Pages Posted: 25 Jan 2015 Last revised: 3 Sep 2015

Noam Biale


Date Written: July 1, 2015


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.

Keywords: habeas corpus, AEDPA, federal courts, Harrington v. Richter, criminal law, inmates, prisoners, standards of review

Suggested Citation

Biale, Noam, Beyond a Reasonable Disagreement: Judging Habeas Corpus (July 1, 2015). 83 U. Cin. L. Rev. 1337 (2015). Available at SSRN:

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