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Case Western Reserve Law Review

Case Western Reserve Law Review 
Volume 72 Issue 3 Article 2 
2022 
Volume 72 Issue 3 (2022) 
Case Western Reserve University Law Review 
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University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law 
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Case Western Reserve Law Review 
Volume 72 Spring 2022 Issue 3 
 
Editor in Chief 
Andrew Rumschlag 
 
Managing Editor 
Christopher Switzer 
 
 
Publisher  
Kathleen Lynch 
 
 
Executive Online Editor 
Callan Foran 
 
Executive Articles Editors 
Katie Hough 
Alexa Shook 
 
 
Executive Symposium Editor 
Reagan Joy 
 
 
Executive Notes & Comments Editor 
Erica Hudson 
 
 
Operations Editor 
Nick Adamson 
 
 
Ariba Ahmad 
 
Contributing Editors 
Jacqueline Kett 
 
 
 
 
Ginger Pinkerton 
 
Elena Barone 
Zhaocheng Li 
Amy Rubenstein 
Senior Editors 
Mark Firmin 
Bridget McCusker 
 
 
 
Jillian Fox 
Alexandra Moore 
Zoe Suntheimer 
 
Matt Borcas 
Kennedy Dickson 
Emma Geesaman 
Abigale Groseclose 
Joan Reardon 
Associate Editors 
Thomas Boyd 
Natalie Eberts 
James Genetin 
Madeline Mischler 
Meritt Salathe 
Sydney Warinner 
 
Lucas Christensen 
Benjamin Foote-Huth 
Annie Goldstein 
Abigail Ophir 
Andrew Thompson  
 
 
Faculty Advisor 
Jonathan Entin 
  


Volume 72 Issue 3 (2022)

Entin, Jonathan L.

Case Western Reserve Law Review 
Volume 72 Issue 3 Article 3 
2022 
Symposium: AEDPA and the PLRA After 25 Years: Introduction 
Jonathan L. Entin 
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Jonathan L. Entin, Symposium: AEDPA and the PLRA After 25 Years: Introduction, 72 Case W. Rsrv L. Rev. 
527 (2022) 
Available at: https://scholarlycommons.law.case.edu/caselrev/vol72/iss3/3 
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Case Western Reserve Law Review·Volume 72·Issue 3·2022 
527 
AEDPA AND THE PLRA AFTER 
25 YEARS: INTRODUCTION 
Jonathan L. Entin† 
In 1996, Congress passed two important statutes that bear on the 
criminal justice system. The Antiterrorism and Effective Death Penalty 
Act1 sought to recalibrate the relationship between state and federal 
courts by limiting the scope of federal habeas corpus review of state 
criminal convictions and by restricting the availability of federal habeas 
relief.2 Proponents of these provisions sought “to curb the abuse of the 
habeas corpus process, and particularly to address the problem of delay 
and repetitive litigation in capital cases.”3 
The Prison Litigation Reform Act4 limited the availability of federal 
relief for prisoners by codifying exhaustion requirements, mandating full 
payment of filing fees, authorizing judicial screening of prisoner 
complaints before docketing that can result in revocation of good-time 
credit, requiring a physical injury as a basis for recovery for mental or 
emotional injury, and adding a “three strikes” rule that bars prisoner 
access to federal court in certain circumstances.5 These provisions 
 
†  David L. Brennan Professor Emeritus of Law and Adjunct Professor of 
Political Science, Case Western Reserve University. 
1. Pub. L. No. 104–132, tit. I, 110 Stat. 1214, 1217–26 (1996) (codified at 28 
U.S.C. §§ 2244, 2253–2255, 2261–2266 (2018)). 
2. AEDPA also contains provisions relating to terrorism that are beyond the 
scope of this symposium. 
3. H.R. Rep. No. 104–23, at 8 (1995). Concern about delays in death penalty 
cases also arose at the state level. For example, in 1994 the Ohio 
Constitution was amended to eliminate the jurisdiction of the court of 
appeals in death penalty cases. Under the new arrangement, all appeals 
in death penalty cases go directly to the state supreme court as a matter 
of right. See Ohio Const. art. IV, §§ 2(B)(2)(a)(ii), 3(B)(2). Under this 
arrangement, death penalty defendants receive only one round of appellate 
review whereas other criminal defendants have the opportunity for two 
rounds of appeals, one by right to the court of appeals and the possibility 
of discretionary review in the supreme court. Before the 1994 amendment, 
death penalty defendants were provided with two rounds of appellate review 
as a matter of right: first in the court of appeals, and then in the supreme 
court. The Ohio Supreme Court rejected a federal constitutional challenge 
to the new arrangement in the first case that arose under the 1994 amend-
ment. State v. Smith, 684 N.E.2d 668, 678–85 (Ohio 1997). 
4. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. 
L. No. 104–134, tit. VIII, 110 Stat. 1321, 1321–66 to –77 (codified at 18 
U.S.C. § 3626 note, 28 U.S.C. §§ 1346(b)(2), 1915–1915A & 42 U.S.C. 
§ 1997e) (2018). 
5. The PLRA also contains provisions relating to remedies for unlawful 
prison conditions. 18 U.S.C. § 3626 (2018). 
Case Western Reserve Law Review·Volume 72·Issue 3·2022 
AEDPA and the PLRA After 25 Years 
528 
sought to reduce judicial oversight of prison operations and deter what 
proponents regarded as a torrent of frivolous lawsuits that undermined 
the authority of correctional officials and imposed unjustified costs on 
government at all levels.6 
Both of these statutes quickly elicited criticism.7 They also have 
generated substantial bodies of jurisprudence.8 To mark the twenty-
fifth anniversary of AEDPA and the PLRA, the Case Western Reserve 
Law Review held a symposium in November 2021 that brought together 
a wide range of scholars, practitioners, and federal judges to discuss 
many questions about those statutes. This issue contains papers that 
were presented on that occasion. 
The first three papers in this symposium issue address the relation-
ship between the statutes and the COVID-19 pandemic. Nancy J. King 
focuses on the equitable powers of federal courts under AEDPA during 
the pandemic.9 She emphasizes that this statute, whatever else it did, 
left intact judicial authority to grant habeas relief to prisoners held in 
violation of the Constitution. That authority is embodied in 28 U.S.C. 
§ 2241. Professor King examines how some federal courts during the 
pandemic have used the equitable discretion that Section 2241 affords. 
More generally, she suggests that equitable considerations are impor-
tant factors in addressing emergencies and unanticipated developments 
 
6. See, e.g., 141 Cong. Rec. 26448–49 (1995) (statement of Sen. Abraham); 
id. at 26548–49 (statement of Sen. Dole); id. at 26553 (statement of Sen. 
Hatch); id. at 26553–54 (statement of Sen. Kyl). 
7. See, e.g., Mark Tushnet & Larry Yackle, Symbolic Statutes and Real 
Laws: The Pathologies of the Antiterrorism and Effective Death Penalty 
Act and the Prison Litigation Reform Act, 47 Duke L.J. 1 (1997); John 
Boston, The Prison Litigation Reform Act: The New Face of Court 
Stripping, 67 Brook. L. Rev. 429 (2001); Kenneth Williams, The Anti-
terrorism and Effective Death Penalty Act: What’s Wrong with It and 
How to Fix It, 33 Conn. L. Rev. 919 (2001). 
8. On AEDPA, see, e.g., Edwards v. Vannoy, 141 S. Ct. 1547 (2021) (holding 
that a decision requiring jury unanimity in criminal cases was not retro-
active); Bucklew v. Precythe, 139 S. Ct. 1112 (2019) (rejecting a death row 
inmate’s challenge to the state’s method of execution); Montgomery v. 
Louisiana, 577 U.S. 190 (2016) (holding that a ruling barring sentences of 
life without parole for juvenile offenders applied retroactively); Felkner v. 
Jackson, 562 U.S. 594 (2011) (overturning habeas relief where the federal 
district court showed insufficient deference to the findings of the state 
courts). On the PLRA, see, e.g., Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 
(2020) (holding that dismissal of a prisoner’s lawsuit, with or without 
prejudice, counts as a PLRA “strike”); Ross v. Blake, 578 U.S. 632 (2016) 
(finding that federal courts must strictly construe the PLRA’s exhaustion 
requirement); Brown v. Plata, 563 U.S. 493 (2011) (affirming an order 
that limited the population of an overcrowded state prison); Cutter v. 
Wilkinson, 544 U.S. 709 (2005) (rejecting claims that state prison officials 
had failed to accommodate inmates’ exercise of their religious beliefs). 
9. Nancy J. King, Equitable Powers after AEDPA—Lessons from the 
Pandemic, 72 Case W. Rsrv. L. Rev. 631 (2022). 
Case Western Reserve Law Review·Volume 72·Issue 3·2022 
AEDPA and the PLRA After 25 Years 
529 
but cautions that those considerations will not inevitably militate in 
favor of relief in all circumstances. She urges Congress and the judiciary 
to retain the flexibility embodied in Section 2241 while continuing to 
debate the appropriate exercise of federal habeas authority. 
The next article focuses on the PLRA. Margo Schlanger and Betsy 
Ginsberg analyze the effect of that measure’s strict exhaustion 
requirement on the ability of inmates to obtain judicial review of the 
conditions of confinement during the pandemic.10 The authors make 
clear their general skepticism of the exhaustion requirement and explain 
why that requirement is especially problematic during a public health 
emergency. Accepting that the PLRA’s exhaustion requirement will 
remain on the books, however, Professors Schlanger and Ginsberg 
suggest several ways to ameliorate its impact on pandemic-related 
prisoner claims. First, courts should allow cases to proceed if a health 
emergency makes it impractical for a prison grievance system to afford 
meaningful preventive measures in a timely fashion. Second, correc-
tional institutions could create emergency grievance systems and the 
government could decline to assert exhaustion defenses in emergencies. 
Finally, Congress could amend the PLRA to eliminate the exhaustion 
requirement during an emergency. 
Rounding out this portion of the symposium, Hadar Aviram 
analyzes COVID-related litigation involving California prisons.11 She 
focuses on two sets of claims, one a federal class action brought under 
the PLRA and the other a large number of state habeas corpus 
proceedings where the PLRA’s restrictions do not apply. In the federal 
case, Professor Aviram notes the shrinking scope of the proposed 
remedy from reduction in prison population to inmate vaccination to 
staff vaccination as well as the government’s obduracy and the court’s 
hesitancy. She also chronicles the state proceedings at every level of the 
California judiciary. Neither the federal nor the state litigation resulted 
in meaningful relief. Professor Aviram suggests that these failures 
reflect both the inadequacies of legal doctrine and the deep-seated pub-
lic hostility toward prisoners. 
The remaining articles address general issues beyond the pandemic. 
William M. Carter, Jr., focuses on both AEDPA and the PLRA, 
observing that they impose wholesale and unique restrictions on the 
ability of incarcerated persons to gain access to the federal courts.12 He 
recognizes that restrictions on access to the courts are not unusual but 
 
10. Margo Schlanger & Betsy Ginsberg, Pandemic Rules: COVID-19 and the 
Prison Litigation Reform Act’s Exhaustion Requirement, 72 Case W. 
Rsrv. L. Rev. 533 (2022). 
11. Hadar Aviram, The House Always Wins: Doctrine and Animus in 
California’s COVID-19 Prison Litigation, 72 Case W. Rsrv. L. Rev. 
565 (2022). 
12. William M. Carter, Jr., Outsider Speech: The PLRA, AEDPA, and 
Adjudicative Expression, 72 Case W. Rsrv. L. Rev. 643 (2022). 
Case Western Reserve Law Review·Volume 72·Issue 3·2022 
AEDPA and the PLRA After 25 Years 
530 
likens the broad restrictions in these statutes to the restrictions on 
judicial access for both enslaved persons and free Blacks before the Civil 
War. Professor Carter then takes a contemporary perspective, analy-
zing AEDPA and the PLRA through a First Amendment lens. He 
suggests that the statutory restrictions on access to the federal courts 
be viewed as content-based, viewpoint-based, and speaker-based restric-
tions on expression. Applying current doctrine, he urges that such 
restrictions should trigger strict scrutiny and that courts should hold 
them to be inconsistent with the First Amendment. But he doubts that 
courts would reach that conclusion. 
The final two articles focus on different aspects of AEDPA. Paul J. 
Larkin endorses the law’s requirement that federal habeas courts defer 
to state courts’ reasonable interpretation of Supreme Court jurispru-
dence.13 Mr. Larkin traces the history of federal habeas review of state 
criminal convictions, criticizes the expansion of that review starting in 
the 1950s, defends the congressional decision in AEDPA to restrict 
federal habeas review of state convictions, and rebuts constitutional 
objections under the Suspension Clause,14 the Vesting Clause,15 and the 
Due Process Clause16 to the changes in federal habeas review that 
AEDPA implemented. 
In the last contribution to the symposium, Judge J. Philip 
Calabrese suggests an amendment to AEDPA in cases where a habeas 
claimant advances a colorable claim of actual innocence.17 As currently 
written, the statute might prevent a prisoner who asserts such a color-
able innocence claim from obtaining appellate review of the denial of 
relief. Judge Calabrese suggests that a prisoner in such circumstances 
should not be required to obtain a certificate of appealability in order 
to get appellate review. 
These articles address a wide range of issues under both AEDPA 
and the PLRA.18 In addition to the pieces that appear in this issue, 
 
13. Paul J. Larkin, The Reasonableness of the “Reasonableness” Standard of 
Habeas Corpus Review Under the Antiterrorism and Effective Death 
Penalty Act of 1996, 72 Case W. Rsrv. L. Rev. 669 (2022). 
14. U.S. Const. art. I, § 9, cl. 2 (“The privilege of the Writ of Habeas Corpus 
shall not be suspended, unless when in Cases of Rebellion or Invasion the 
public Safety may require it.”). 
15. U.S. Const. art. III, § 1 (“The judicial Power of the United States, shall 
be vested in one supreme Court, and in such inferior Courts as the Congress 
may from time to time ordain and establish.”). 
16. U.S. Const. amend. V (“No person shall be . . . deprived of life, liberty, 
or property, without due process of law . . . .”). 
17. J. Philip Calabrese, Codifying Innocence: A Modest Step Toward Reform, 
72 Case W. Rsrv. L. Rev. 745 (2022). 
18. This issue also contains a student contribution that, while not formally 
part of the symposium, addresses a PLRA issue. See Mark Firmin, Note, 
 
Case Western Reserve Law Review·Volume 72·Issue 3·2022 
AEDPA and the PLRA After 25 Years 
531 
several practitioners and federal judges offered their perspectives on 
these statutes. The entire program is available online.19 
This symposium would not have been possible without the enthu-
siastic support of many individuals and entities. First, thanks to Deans 
Jessica W. Berg and Michael P. Scharf for their continuing assistance 
and encouragement. 
The Federal Litigation Section of the Federal Bar Association and 
the FBA’s Northern District of Ohio chapter provided financial support 
and co-sponsored the program. We also obtained a grant from the 
Attorney Admissions Fund of the United States District Court for the 
Northern District of Ohio. We are especially grateful for all of this ex-
ternal backing. 
Two editors of the Law Review deserve special recognition. 
Symposium Editor Reagan Joy and Editor-in-Chief Andrew Rumschlag 
developed the symposium and carried it out flawlessly. 
Finally, Eric Siler provided extraordinary staff support for the 
symposium, making sure that everything went smoothly. He has consis-
tently facilitated Law Review programs, so his work this year was par 
for the course. We cannot thank him enough. 
 
Murphy’s Law: For Attorney’s Fees Shifting Under the PLRA, Everything 
That Could Go Wrong Has Gone Wrong, 72 Case W. Rsrv. L. Rev. 
751 (2022). 
19. AEDPA and the PLRA After 25 Years, Nov. 12, 2021, https://case.edu/ 
law/our-school/events-lectures/aedpa-and-plra-after-25-years-case-
western-reserve-law-review-symposium [https://perma.cc/64JK-EJSP]. 


Symposium: AEDPA and the PLRA After 25 Years: Introduction

Volume 72 Issue 4 (2022)

Case Western Reserve Law Review 
Volume 72 Issue 4 Article 1 
2022 
Masthead 
Volume 72 Issue 4 (2022) 
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This Front Matter is brought to you for free and open access by the Student Journals at Case Western Reserve 
University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law 
Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 
Case Western Reserve Law Review 
Volume 72 Summer 2022 Issue 4 
 
Editor in Chief 
Andrew Rumschlag 
 
Managing Editor 
Christopher Switzer 
 
 
Publisher  
Kathleen Lynch 
 
 
Executive Online Editor 
Callan Foran 
 
Executive Articles Editors 
Katie Hough 
Alexa Shook 
 
 
Executive Symposium Editor 
Reagan Joy 
 
 
Executive Notes & Comments Editor 
Erica Hudson 
 
 
Operations Editor 
Nick Adamson 
 
 
Ariba Ahmad 
 
Contributing Editors 
Jacqueline Kett 
 
 
 
 
Ginger Pinkerton 
 
Elena Barone 
Zhaocheng Li 
Amy Rubenstein 
Senior Editors 
Mark Firmin 
Bridget McCusker 
 
 
 
Jillian Fox 
Alexandra Moore 
Zoe Suntheimer 
 
Matt Borcas 
Kennedy Dickson 
Emma Geesaman 
Abigale Groseclose 
Joan Reardon 
Associate Editors 
Thomas Boyd 
Natalie Eberts 
James Genetin 
Madeline Mischler 
Meritt Salathe 
Sydney Warinner 
 
Lucas Christensen 
Benjamin Foote-Huth 
Annie Goldstein 
Abigail Ophir 
Andrew Thompson  
 
 
Faculty Advisor 
Jonathan Entin 
  


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United States Distinguished Lecture Proceedings of the 45th Canada-United States Law Institute Annual Conference - Climate Change and the Arctic: Profound Disruption, Uncertain Impact

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