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Buffalo Law Review

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The issue of the proper scope of the federal writ of habeas corpus has for the past several decades generated repeated political struggles in the judicial, legislative, and executive arenas.1 The prominence of this seemingly arcane legal question is not difficult to explain; it implicates a series of fundamental issues of public policy: crime control, civil liberties, the allocation of power and responsibility between branches and levels of government, and the justice and efficacy of the criminal justice system, particularly with regard to the death penalty.

Yet the habeas corpus debate has taken place in the context of an astonishing dearth of historical knowledge. This phenomenon results from the fact that the field has fallen into an uneasy scholarly void between law and history. It is too technically complex to be studied by those lacking a serious legal background, but lawyers are ill-suited for the pursuit because reported judicial opinions- the lawyer's primary research source-are an "unreliable indication of the actual extent of habeas corpus litigation and the types of restraints for which the writ was issued."