The defining question in modern habeas corpus law involves the finality
of a state conviction: What preclusive effect does (and should) a criminal
judgment have? Res judicata and collateral estoppel —the famous preclusion
rules for civil judgments—accommodate basic legal interests in fairness,
certitude, and sovereignty. Legal institutions carefully calibrate the preclusive
effect of civil judgments because judicial resources are scarce, because
the reliability and legitimacy of prior process can vary, and because courts
wield the authority of a repeat-playing sovereign that will find its own civil
judgments attacked in foreign litigation. In stark contrast to the legal sophistication
lavished on the finality of civil judgments, however, is the rudimentary
treatment of preclusion rules in criminal cases. Nowhere is such
treatment more mischievous than in modern habeas corpus law.
Preclusion and Criminal Judgment,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol92/iss2/3