Preclusion and Criminal Judgment

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 judicata and collateral estoppel —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.