Preclusion and Criminal Judgment

Abstract

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.

Lee Kovarsky, Preclusion and Criminal Judgment, 92 Notre Dame L. Rev. 637 (2017).
Available at: https://scholarship.law.nd.edu/ndlr/vol92/iss2/3

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