Recommended Reading: Garrett and Kovarsky’s New Casebook on Federal Habeas Corpus
A new casebook co-authored by University of Virginia law professor Brandon Garrett and my brilliant colleague Lee Kovarsky is the first to comprehensively cover habeas corpus, particularly exploring the topics of post-conviction review, executive and national security detention litigation, and the detention of immigrants. The book, just published by Foundation Press, is titled “Federal Habeas Corpus: Executive Detention and Post-conviction Litigation.”
The privilege of habeas corpus — which ensures that a prisoner can challenge an unlawful detention, such as for a lack of sufficient cause or evidence — has grown increasingly complex and important. Just this week, the Supreme Court decided important habeas cases recognizing an innocence-exception to habeas time-limits, and making it easier for state inmates to use habeas corpus to challenge the ineffectiveness of their trial lawyer. See Garrett and Kovarsky on ‘Two Gateways to Habeas’)
Here is an excerpt of an interview of Professor Garrett and Professor Kovarsky posted on the UVA website:
“In writing this casebook, our goal was to create the subject,” Garrett said. “There is something deep connecting different parts of habeas corpus that are often taught in far-flung parts of courses or are not taught at all. Habeas corpus is now an extremely valuable and exciting course to teach, and we thought the subject demanded a rich set of teaching materials.”
Garrett, who has taught habeas corpus at UVA Law for eight years, co-wrote the book with Kovarsky, a 2004 Virginia Law graduate and a leading habeas and capital litigator who joined the University of Maryland’s Francis King Carey School of Law as an assistant professor in 2011.
“A few years ago, I started talking to Lee about habeas corpus,” Garrett said. “Lee writes insightful scholarship about habeas corpus, and is also a longtime habeas practitioner; he still works on high-profile death penalty cases in Texas. I sent him my course materials because he was starting teaching as a law professor at Maryland. And he immediately said that this should be a casebook.”
Kovarsky said he and Garrett decided to work together on the project to identify — and establish — a habeas canon that was “divorced from any immediate political, ideological or institutional objective.”
“The decisional law and academic literature is polluted with too much erroneously accepted wisdom about the [writ of habeas corpus'] essence and, by implication, its limits,” he said. “That accepted wisdom, in turn, fuels legally substantial narratives that are, in many ways, best explored, challenged and modified in a classroom.”
Traditionally, Garrett said, law schools have taught habeas corpus as a short segment in federal courts or criminal adjudication courses rather than as a full class. Yet these brief segments, he said, are no longer sufficient.
The law of habeas corpus became significantly more complicated after Congress passed the Antiterrorism and Effective Death Penalty Act in 1996, which was passed in the wake of the Oklahoma City bombing and the first World Trade Center bombing.
“That statute interacts with all the old habeas decisions in a way that is so complex that you cannot adequately cover how prisoner claims work anymore in just a couple of weeks,” Garrett said.” The statute is incredibly important, but it is hard and technical, and there is a lot that students need to understand to be able to work with it carefully.”
Habeas corpus grew even more complicated following the Sept. 11 terrorist attacks.
“The Supreme Court after 9/11 had to wrestle with executive detentions of hundreds of people at Guantanamo and other places,” Garrett said. “And the Supreme Court had to say more than ever before about what the suspension clause means. The court had never struck down detention legislation under the suspension clause, but it did that in Boumediene v. Bush.”
Now that the Supreme Court has more clearly defined what habeas means in national security cases, the time is ripe for a casebook to better understand the subject, he said.
The book also deals with immigration detention, yet another complicated side of habeas corpus law. Garrett noted that UVA Law professors and immigration law experts David Martin and Kerry Abrams helped a great deal with the chapter exploring judicial review of immigration custody.
Additionally, he said, “the casebook materials on national security detention grew out of a J term course I co-taught withTom Nachbar, and many other colleagues here at UVA were invaluable readers, as were several incredibly dedicated law students both here at UVA and at Maryland.”
The casebook shows how many of the same principles apply across all areas of habeas, whether the prisoner is a state criminal convict, a federal prisoner, an executive detainee or an immigration detainee, Garrett said.
Garrett taught habeas corpus using a draft of the casebook at the Law School in the fall. Kovarsky taught from the draft at Maryland last spring.
Garrett said he and Kovarsky believe the book will be particularly useful to certain law school clinics — such as those dealing with innocence cases, capital litigation and post-conviction work — as well as a variety of other law school courses.
“We designed the book so that it can be taught a number of different ways,” Garrett said. “It could be used for a national security detention class mostly focusing on the executive detention cases or it could be used for a post-conviction focused class, where really the goal is to master what happens in criminal cases after the appeal is done. Or it could be used for a class more focused on theory, like a wrongful conviction seminar or a seminar focused on the suspension clause and the power of federal judges to grant habeas.”
The casebook arrives as law schools are seeing greater interest among students in upper-level criminal courses, particularly courses that provide students with a practical and detailed knowledge of how cases are handled in practice, Garrett said. Additionally, he said, more students are pursuing careers in national security and immigration law, so they are interested in understanding habeas corpus in those contexts.