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Habeas Corpus Standing Alone: A Reply to Lee B. Kovarsky and Stephen I. Vladeck

The differences between habeas corpus and due process are important. The Due Process Clause, among other things, regulates the procedures that the government must use before it detains a person and holds the person in custody. But the Suspension Clause safeguards a more elemental habeas privilege. That is, under the Suspension Clause, the judge examines […]

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Habeas Corpus, Due Process, and Extradition

It is difficult to dispute the central claim of Professor Brandon Garrett’s article, Habeas Corpus and Due Process, that the Supreme Court’s 2008 decision in Boumediene v. Bush “can and should provide a theory of the nature and structure of habeas corpus.” After all, as Professor Garrett cogently explains, Boumediene was not only the first […]

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Custodial and Collateral Process: A Response to Professor Garrett

In Habeas Corpus and Due Process, Professor Brandon Garrett disentangles two threads of decisional law knotted in the federal courts’ post-9/11 national-security detention cases.  Such cases can be fish-in-barrel targets for withering criticism, but Professor Garrett makes the novel argument that they reflect confusion about subtle differences between due process and habeas corpus. His thesis centers […]

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