Marc D. Falkoff

Document Type



Although most American lawyers and legal scholars are primarily familiar with habeas corpus in the context of federal review of state convictions, habeas petitions have been used to challenge detention by the executive branch in a variety of non-criminal contexts, such as immigration or national security. In this Article, we offer a two-part justification of a robust habeas procedure in non-criminal contexts. First, building upon insights drawn from contract theory, we argue that habeas corpus review has an information-forcing function. In our account, one of the crucial benefits of habeas review in non-criminal contexts is that it is often the only means by which the executive branch can be induced to disclose information it may possess regarding the detention, and to publicly justify the detention. This important function is frequently overlooked in the context of post-conviction review of criminal sentences, because an adequate trial procedure will have revealed the asserted factual and legal basis of the petitioner's detention. Where there has been no trial, however, habeas corpus may be the only way that the petitioner, and the pubic at large, will learn of the asserted basis for detention. Second, we argue that, beyond the obvious benefits for the petitioner, the availability of a procedure to enforce disclosure serves important political process values as well. Decisions about individual detentions are vested in the discretion of executive branch officers, and broader policy decisions undergirding detention are committed to the legislative and executive branches. The possibility that one or both political branches will engage in or endorse arbitrary or unlawful detentions is primarily constrained by the operation of the political process — to the extent that political leaders subject persons to detention in a manner that is contrary to the values of preferences of a majority of the nation's citizens, the voters may hold those leaders accountable. However, this process cannot operate without disclosure to the public about the facts and asserted justification for the detention.

Publication Date


Original Citation

Marc D. Falkoff, Habeas, Informational Asymmetries, and the War on Terror, 41 Seton Hall L. Rev. 1361 (2011) (with Jon Connolly).


College of Law

Legacy Department

College of Law





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