CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, November 24, 2021

Tyler on Habeas Corpus

Amanda L. Tyler (University of California, Berkeley - School of Law) has posted Habeas Corpus: A Very Short Introduction (Excerpt) (Oxford University Press 2021) on SSRN. Here is the abstract:
This Very Short Introduction will tell the story of what is sometimes known as “the Great Writ” as it has unfolded in Anglo-American law. The primary jurisdictions explored will be Great Britain and the United States, but many aspects of this story will ring familiar to those in other countries with a robust habeas tradition. Along the way, the book will chronicle the long-standing role of the common law writ as a vehicle for reviewing detentions for conformity with underlying law, as well as more specifically the profound influence of the English Habeas Corpus Act of 1679 on Anglo-American law. The book will highlight how under certain circumstances the common law writ has come up short. It will also, however, tell stories of how on other occasions the common law writ has proved immensely significant in the story of individual liberty, including, to offer but one example, as a vehicle for freeing slaves.

The pages that follow also explore the English Habeas Corpus Act and its importance in Anglo-American habeas jurisprudence, including its enormous influence on the drafting of the US Constitution. They also will reveal the waning influence of the act in the twentieth and twenty-first centuries. It is during this period that courts in both countries moved away from a suspension model grounded in the act’s protections and—sometimes for better and sometimes for worse—embraced a vision of habeas drawing primarily on the common law writ, heralding its adaptability to address new circumstances as they arise, but sometimes doing so at the expense of the core protections enshrined in and long associated with the Habeas Corpus Act.

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