The Promise of Habeas Corpus Post-Vavilov: The Principle of Legality
Canadian Bar Review, forthcoming, 2022
24 Pages Posted: 23 Mar 2022 Last revised: 28 Mar 2022
Date Written: March 17, 2022
This paper evaluates the status of habeas corpus after the Supreme Court’s decision in Vavilov from the perspective of the principle of legality—understood as the extent to which legal materials structure and constrain arbitrary carceral decision-making. It suggests that while Vavilov should change how habeas corpus applications are reviewed—introducing a generally more stringent reasonableness standard that focuses on the stakes to the individuals affected by carceral discretion—some courts post-Vavilov are not exploring these options. Instead, some courts are simply referring to the pre-Vavilov state of the law, which focuses on the presumed expertise of prison decision-makers. This paper suggests that the reluctance of courts to move past this idealized and incorrect picture of prison decision-making undermines the ideal of legality as a fetter on bureaucratic exigency in the carceral state. Renewing the promise of habeas corpus, post-Vavilov, will ask courts to re-evaluate the model of carceral expertise they have constructed.
Keywords: habeas corpus, administrative law, legality, judicial review
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