Dialectical Federalism: Habeas Corpus and the Court

Abstract

This article will examine the remedial strategy of the Warren Court for its reforms in criminal procedure. It will suggest that the Court chose redundancy and indirection as its remedial strategy in order to mediate the pragmatic perspective of criminal administration and the idealistic vision of a secular faith. This strategy structured a dialogue on the future of constitutional requirements in criminal law in which state and federal courts were required both to speak and listen as equals. The Court shunned the more direct but intrusive controls of liability rules and equity, thus avoiding the social costs of building, imposing and supervising a new, "fair" structure for criminal adjudications. Concededly, the blessings of this strategy have been mixed, and much will be made of its deficiencies. Yet this article will suggest that the pursuit of alternative models for federal-state interaction in the criminal process is replete with difficulties..