INTRODUCTION I. VARIETIES OF COUNTERFACTUAL SPECULATION A. Hard and Soft Counterfactuals B. Counterfactuals in the Law 1. Counterfactual speculation in criminal appeals: harmless error 2. Counterfactual speculation on habeas 3. Refusal to speculate II. COUNTERFACTUAL SPECULATION UNDERAEDPA A. Early Applications B. A Change in Direction: Cullen v. Pinholster 1. Textual arguments 2. Arguments from precedent 3. Appeal to background principles C. The Change Takes Hold: Greene v. Fisher III. CAN THE DEPARTURE BE JUSTIFIED? A. Hard/Soft? B. Inherent in the Situation? IV. A MORE COHERENT APPROACH CONCLUSION INTRODUCTION
Imagine you are buying a home. The seller provides you with a certificate stating that the property has been inspected for termites and that none were found. You move in. Two weeks later, you discover that the place is crawling with termites, requiring expensive repairs and substantially reducing the value of the house. (The certificate, it turns out, was a fake.) If you had known about the termites at the time of the purchase, you certainly would not have purchased this house. Although a court might award you the costs of extermination and possibly even the difference between the value without the termites and the value with, what you most want is to undo the transaction. After all, no rational person would have made the deal knowing what you know now. Courts sometimes grant this remedy, undoing a contract where there has been, for example, fraud or duress. (1) And what if the sale could not be reversed? You might wish the court would just give you a new house, with all the features you wanted--and without the termites. After all, if there exists a comparable and termite-free house, you almost surely would have bought it to begin with if you'd known what you know now. All of these possible remedies involve counterfactual speculation; to compensate you, either with damages, by undoing the contract, or by giving you the new house, the court will have to assess what would have been, absent the defendant's wrongdoing.
The analysis supporting this type of remedy--assuming that a decisionmaker would have made the rational choice had he had all the relevant information at the time--is precisely what the Supreme Court has just interpreted the federal habeas corpus statute to forbid. Though real estate contracts are a far cry from habeas corpus, the bedrock principle is the same: a need for considering what would have happened if things had gone a little differently.
Specifically, the Supreme Court has recently held that in federal court review of state court convictions under 28 U.S.C. [section] 2254, the state court decision to uphold a conviction must be judged as of the time the decision was made, regardless of what information becomes available thereafter. In Cullen v. Pinholster, (2) the Court grappled with the situation in which new evidence was brought forth in a federal hearing properly held after the state court issued its decision. How was the federal court to evaluate the state court's decision when the state court hadn't heard all the evidence? It could not be done, the Court concluded, because "[i]t would be strange to ask federal courts to analyze whether a state court's adjudication ... unreasonably applied federal law to facts not before the state court." (3) Last Term, the Court addressed a similar question concerning a change in the law between the state court's and federal court's review of the case, and similarly concluded that the change was irrelevant in considering the state court's resolution of a case, regardless of the fact that standard retroactivity principles would make that new law part of the body of law applicable to that petitioner. (4) In other words, subsequently obtained information, no matter how compelling or legally relevant, cannot be brought to bear in evaluating the state court's decision. The defendant is stuck with the state court's decision, even if it was made based on what the reviewing court now knows to be an incomplete or erroneous understanding of the facts or law. The federal court must refuse to consider what the state court would have done had it been fully informed.
In several recent cases, this refusal has left a defendant without recourse for what the Court acknowledges is a violation of his rights. For example, in Greene v. Fisher, nobody disputed that a codefendant's testimony at trial violated the defendant's rights under the Confrontation Clause as interpreted by Gray v. Maryland, nor that Gray should apply to his case under the retroactivity rule of Teague v. Lane. (5) But due to a quirk in timing, the state court never applied Gray. Because a remedy would require counterfactual speculation about what a state court would have done if it had applied Gray, the federal court could not correct the problem, (6) even though any court faced with the facts of the case would almost certainly have granted relief. The defendant is thus still in prison, even though his trial violated his rights under the Confrontation Clause.
This now-forbidden analysis is a type of counterfactual speculation. That is, it would ask the court to consider what would have happened in some alternate situation, but did not actually happen. Though it is, of course, impossible to be certain of what would have happened had things been different, (7) courts are constantly considering this question in a wide range of legal and factual contexts, including inquiries into causation, damages, harmless error, severability of statutes, Seventh Amendment jury trial inquiries, and rational basis review, to name a few. Much of our legal system depends on counterfactual reasoning, and though some courts and scholars have expressed discomfort with the idea, (8) it does not appear to be going anywhere any time soon. The legal scholarship concerning counterfactual reasoning has thus far been concentrated in tort law and, to a lesser extent, civil remedies. (9)
This Note analyzes and evaluates the Court's treatment of counterfactual reasoning in interpreting the federal habeas corpus statute. The standard analytical approaches to federal habeas review of state convictions have focused on the constitutional or federalism concerns associated with federal habeas review; (10) no one has analyzed the role of counterfactual speculation as an important principle in appellate review of criminal convictions or in habeas corpus. This Note provides the first formal framework for characterizing counte rfactual inquiries and then applies it to expose the inconsistency in the Court's treatment of those inquiries in the habeas context.
No discussion of federal habeas corpus law can proceed without discussion of the major shift in 1996 when Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA). (11) AEDPA is a complex, poorly drafted statute that is impossible to interpret logically and consistently. (12) Its text, read as a whole, is irresolvably ambiguous. (13) Such statutes require the Court to look to background principles, against which the statute was drafted, to determine its meaning. But in the case of AEDPA, the Court's choice of background principles has been both incomplete and incorrectly applied. It has ignored norms surrounding the use of counterfactuals completely, and it has mis-weighed the traditional concerns of federalism and finality, both by overstating the degree to which its decisions will serve these values and by failing to consider the essential countervailing concern of remedying serious constitutional error. A proper approach to counterfactual analysis will be both more coherent and consistent with the Court's jurisprudence in other areas and more fair to criminal defendants whose rights were violated during the trial process.
This Note will proceed in four parts. Part I will consider counterfactual speculation generally, analyzing the different forms it can take with regard to what is actually true and actually known. This brief theoretical aside is necessary for the discussion of actual uses of counterfactuals in the law that will follow, so that we can distinguish among the types of guesses courts are willing and unwilling to make. I will also consider various areas of the law in which courts engage in different forms of counterfactual thinking, beginning with a broad look, then narrowing to the treatment of counterfactuals in criminal law and habeas corpus review specifically. Part II will take a largely descriptive look at the role that counterfactual speculation has played in habeas corpus review to date, beginning with the first cases interpreting AEDPA and continuing through last Term's decision in Greene. Part III will consider possible justifications for the inconsistencies in the treatment of counterfactuals in the habeas context not addressed by the Court, concluding that they cannot justify the departure. Part IV will endeavor to suggest a more coherent approach. Rather than refusing to speculate in habeas cases based on the counterfactual nature of the inquiry, courts should, as they do in other areas of law, base their willingness to credit a counterfactual on how likely the alternate outcome would be, accepting highly likely alternate outcomes and rejecting those that would have been unlikely.
I.VARIETIES OF COUNTERFACTUAL SPECULATION
Not all counterfactual speculation is alike. The practice can be divided into categories according to what is known, how likely each outcome is, and what is actually possible. I will not undertake an extensive analysis of the philosophical role of counterfactual thinking in life or in law, nor of the philosophical distinctions among the different types; that work has been done elsewhere. (14) Rather, here, I will seek merely to describe and classify, to permit examination of courts' different treatment of counterfactual thinking in different situations.
Most broadly, we can divide the realm of...