From Volume 78, Number 5 (July 2005)
Habeas is an anomaly in the law of federal courts. For decades now, state courts have solely and finally resolved federal issues with minimal federal superintendency. For nearly as long, however, the federal writ of habeas corpus has not adhered to this general paradigm and has been interpreted to permit federal courts to revisit anew federal issues litigated before state courts in the course of state criminal prosecutions. Indeed, the special treatment of habeas is so longstanding that it is a near-axiomatic contour in the fabric of federal courts law. This Article questions that axiom. Starting from a premise placing high value on theoretical consistency (a premise subject to legitimate criticism), I examine the functional and theoretical differences between the paradigm that typically governs adjudication of federal issues in the state courts (which I dub the “paradigmatic construct”) and the paradigm that applies to adjudication of federal issues in state criminal prosecutions and in subsequent, federal habeas corpus proceedings (the “habeas construct”). This deconstructive exercise reveals that these two constructs are animated by fundamentally different views of the interrelationship of the state and federal judiciaries. Starting from the further premise that the paradigmatic construct is the appropriate baseline (a premise also subject to debate), I then examine two very different approaches to eliminate this theoretical discord. The less aggressive approach attempts to cure the discord by providing a new theoretical basis for habeas that justifies its current contours. The more aggressive approach attempts to cure the discord by reshaping the contours of the writ to treat adjudications of federal issues in the habeas construct more like they are treated under the paradigmatic construct.