Dialectical Federalism: Habeas Corpus and the Court (with Aleinikoff), 86 YALE L.J. 1035 (1977)
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..
Date of Authorship for this Version
Cover, Robert M. and Aleinikoff, T. Alexander, "Dialectical Federalism: Habeas Corpus and the Court" (1977). Faculty Scholarship Series. Paper 2699.