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supreme court, supreme court jurisdiction, federal jurisdiction, appellate jurisdiction, federal courts, habeas corpus, original habeas, death penalty, capital punishment, execution, troy davis, federal courts


This article is used by permission of the Virginia Law Review Association.


This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant state of original habeas inactivity. In light of the original writ’s history and of newly-cognizable constitutional claims, the authority may evolve into a safety valve by which the Court ensures that capital prisoners are not wrongfully executed.

Publication Citation

97 Virginia Law Review 61 (2011).


Constitutional Law