AEDPA Repeal

45 Pages Posted: 21 Jun 2022

See all articles by Brandon L. Garrett

Brandon L. Garrett

Duke University School of Law

Kaitlin Phillips

affiliation not provided to SSRN

Date Written: June 10, 2022


The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus. Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation. The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas corpus cases, whether capital or non capital. Still more perverse, the impact of AEDPA was particularly strong in non capital cases. Since its enactment, AEDPA has been widely criticized by academics, legislators, and judges, for erecting a complex, poorly drafted set of procedural barriers, and for limiting federal review on the merits of most constitutional claims. This Article examines statutory approaches designed to restore federal habeas corpus. Any partial or complete repeal of AEDPA raises complex and unexplored issues. The central challenge is that AEDPA operates alongside decades of Supreme Court created restrictions of federal habeas corpus. In this Article, we walk through proposals for how AEDPA provisions could be amended, benefits and costs of each change, and how Supreme Court doctrine affects each choice. AEDPA repeal is not as simple as eliminating the judicially created doctrine of qualified immunity in civil rights litigation. However, real improvements to federal habeas practice are achievable, and in this Article, we provide a legislative roadmap for habeas reform through AEDPA repeal.

Suggested Citation

Garrett, Brandon L. and Phillips, Kaitlin, AEDPA Repeal (June 10, 2022). Cornell Law Review 2022, Duke Law School Public Law & Legal Theory Series No. 2022-39, Available at SSRN:

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)


Kaitlin Phillips

affiliation not provided to SSRN

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