Seeking Clarity in the Federal Habeas Fog : Determining What Constitutes Clearly Established Law Under the Antiterrorism and Effective Death Penalty Act

Congress's addition of the word clearly in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) has had a significant impact on federal habeas corpus claims. Because AEDPA requires quot;clearly establishedquot; law must exist for a court to grant a writ of habeas corpus, a habeas court's determination of what constitutes quot;clearly establishedquot; law has grave consequences: it can mean the difference between freedom and prison. This Article examines the meaning of clearly established Federal law, as determined by the Supreme Court of the United States under AEDPA. AEDPA's limitation hinges on a concept vital to our common law system: precedent. While determining what constitutes precedent in the habeas context is complex, fundamentally it asks the same core questions about the scope and strength of Supreme Court pronouncements that courts handle everyday. Federal courts are already well equipped to handle these questions, but currently do not share a common understanding of what constitutes clearly established law in the habeas context. This Article examines the federal courts' application of AEDPA's quot;clearly establishedquot; law requirement, in particular the lower courts' struggle with the lack of Supreme Court guidance. After categorizing the common issues that arise, it proposes five analytic touchstones to which courts should refer when making this determination: the number of cases required, the source of the precedent, the timing of the precedent, the scope of the precedent, and the strength of the precedent. This approach minimizes federal intrusions and defers to reasonable interpretations by the state courts when the law is not clear. The need for a common understanding is urgent, not just to ensure the appropriate application of AEDPA, but because liberty is at stake