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60 N.Y.U. L. Rev. 991 (1985)
Explaining Habeas Corpus

handle is hein.journals/nylr60 and id is 1005 raw text is: NEW YORK UNIVERSITY LAW REVIEW VOLUME 60 DECEMBER 1985 NUMBER 6 EXPLAINING HABEAS CORPUS LARRY W. YACKLE* In an era when increasingly vociferous attacks on federal habeas corpus doctrine threaten the availability of the writ, the development of a contemporary relevant expla- nation for the doctrine is particularly importan In this Article, Professor Larry Yackle fashions an alternative to the traditional explanation. Professor Yackle begins by illuminating the deficiencies in the conventional custody explanation. He then canvasses the criticisms of the modern use of the writ and various proposals for its change or abolition. Next, he presents his explanation. Professor Yackle contends that the writ is better explained as providing a federal forum in which to enforce federal rights that may be unpopular with the states. His theory accounts both for the availa- bility of the federal forum to state criminal defendants with federal claims and for the postponement of federal adjudication until after the completion of state proceedings. In conclusion, Professor Yackle elaborates on the implications of his model of collat- eral review for related areas of the law and for current habeas doctrine itself INTRODUCTION The controversy surrounding federal habeas corpus has not abated.1 It will continue until the federal courts' authority to discharge prisoners from state custody is explained on some conceptually satisfying basis.2 I mean in this Article to offer such an explanation. Conventional wisdom * Professor of Law, Boston University. A.B., 1968, J.D., 1973, University of Kansas; LL.M., 1974, Harvard University. I would like to thank Thomas E. Baker, Michael J. Churgin, Jerome Hoffman, Aviam Soifer, and especially Lawrence G. Sager for comments on the initial draft of this piece. I also had the benefit of presenting a draft to the Legal Theory Workshop at Boston University. At various places below, I have tried to respond to the points and questions raised in that company. I See C. Wright, The Law of Federal Courts § 53, at 344 (4th ed. 1983) (noting that habeas corpus for state prisoners is, and always has been, a controversial and emotion-ridden subject). See generally State Prisoner Use of Federal Habeas Corpus Procedures, 44 Ohio St. L.J. 269 (1983); State Courts and Federalism in the 1980's, 22 Wm. & Mary L. Rev. 599 (1981). 2 There is also debate over the related question whether federal criminal judgments should be open to collateral attack. It is less vigorous, however, because comity and federalism do not figure in that discussion. See Kaufman v. United States, 394 U.S. 217, 228-31 (1969) (holding that claims asserted by prisoners attacking federal judgments require the protection of collat- 991 Imaged with the Permission of N.Y.U. Law Review

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