Preclusion and Criminal Judgment

Lee Kovarsky*

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 judicata¹ and collateral estoppel²—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.

The preclusion rules inherited from English common law coexist rather uncomfortably with the habeas guarantee of lawful custody. Habeas challenges may attack any type of detention,³ but the largest modern category consists of collateral challenges to state criminal judgments (convictions). An inmate who collaterally challenges a conviction in an Article III court seeks an inquiry that seems inconsistent with familiar preclusion rules. When that inmate is in custody pursuant to a state conviction, federal habeas process also presents knotty questions of inter-jurisdictional preclusion.

The role of finality in habeas law is rooted in the Law of Judgments, which is the subject of two Restatements and involves the preclusive effects of judgments rendered in civil actions.⁴ This Article follows from the premise that, if the Law of Judgments reduces finality interests to doctrinal form,⁵ then habeas inquiry ought to take it seriously.

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© 2016 Lee Kovarsky. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, University of Maryland School of Law. For their insightful comments, I thank John Blume, Richard Boldt, Andrew Bradt, Danielle Citron, Brandon Garrett, Adam Gershowitz, Aziz Huq, Allison Larsen, James Pfander, Amanda Tyler, and Jared Tyler. I am grateful to Brian Healy and Siyang Song for sterling research assistance. All errors are mine.

1 See 1 Restatement (Second) of Judgments § 24(1) (Am. Law Inst. 1982); Note, Developments in the Law: Res Judicata, 65 Harv. L. Rev. 818, 820 n.1 (1952).

2 See 46 Am. Jur. 2d Judgments § 464 (2012).

3 See generally Brandon L. Garrett & Lee Kovarsky, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation (2013) (dividing custody categories into national security, post-conviction, immigration, and other civil detention).

4 See 1 Restatement (Second) of Judgments ch. 1 Scope (Am. Law Inst. 1982).

5 I frequently refer to the “Law of Judgments,” but in every instance I mean to refer also to the Law-of-Judgments concepts appearing in the Restatement (First) of Conflict of Laws and Restatement (Second) of Conflict of Laws.