Document Type

Article

Publication Title

Minnesota Law Review

Abstract

This Article sets out the rationale for the expansion of the scope of the writ that the Brown Court neglected to provide, thereby permitting an untangling of confused habeas doctrine and focusing debate on the pertinent questions concerning federal habeas review. The Article's thesis is that the Court expanded the scope of the writ of habeas corpus in Brown because the Court recognized that it no longer could shoulder the burden on direct review of scrutinizing constitutional claims arising in state criminal proceedings. Accordingly, the federal habeas courts were to act as surrogates for the United States Supreme Court through habeas review, in effect exercising appellate jurisdiction over state criminal proceedings. In a sense, then, after Brown there were two writs of habeas corpus: the old common-law writ, narrow in scope and historically used to free prisoners subject to fundamentally unlawful incarceration, and a new writ, which now serves in effect as a federal appeal from every state conviction.

First Page

247

Volume

73

Publication Date

1988

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