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Letter from Ronald Sokol to Daniel Meador, Sunday, August 4, 1968

4 August 1968

Dear Dan,

I am shoulder deep in habeas corpus. I have already churned out a
nondescript, insipid article on the subject for Am. Jur.’s Encyclopedia of Trials. Despite
the mediocre result it did get me back into the subject and brought me to grips with
the new developments, the 1968 amendments and, more importantly, the 1968 cases. I am
now working on a revised edition of my Handbook which will not aspire to
the status of a treatise, whatever such a creature might be called. In addition
to revising the book I am working on a somewhat ambitious expansion, namely
an introduction which will try to (1) say what the writ of habeas corpus is, (2) give a
sketch of its history, (3) define its place in the federal courts today, and (4) define
its role in American jurisprudence generally. I have read, a couple of times,
your habeas corpus and Magna Carta piece and really think it brilliant. In fact, I
hope ultimately to write a review of it. It is too important a work to let pass
unnoticed. Meanwhile I have some questions which I hope you can answer for
me before I set sail, or more accurately wing, for Europe on 2d September.

I notice you rely heavily on Walker and Cohen. I read Walker several times
four or five years ago. I don’t have him at hand now but am trying to purchase a
copy. I recall the book as competent but nothing extraordinary. I do have Cohen
available though, and I have been poring over his articles and am now trying to
get his LLM thesis (from which the articles came) or a copy of it. My first question is
have you seen his thesis?[sentence underline] Secondly, Cohen quotes three sources that he did not have the
opportunity to see. I am wondering if you were able to use them.[partial underline] They are:
Fry, The Writ of Habeas Corpus[underline] (1838); Van Der Veen, De Engelsche Habeas
Corpus Act[underline] (Leiden, 1878); Sully-Hood, History of the Writ of Habeas
Corpus[underline] (Mss. Royal Historical Society, London). I am curious to know especially
if you have seen the last which perhaps I could stop and examine en
route to Paris. Finally, Pendleton Howard in his article on habeas corpus in the
Encyclopedia of Social Sciences VII 233-36 (1932) lists in his bibliography a two volume
work by W.F. Bailey, Treatise on the Law of Habeas Corpus and the Special
Remedies[underline] published in Chicago in 1913 that I have never heard of nor
seen cited anywhere. Do you know anything of this I wonder.

I thought the article in 52 Va. L. Rev. 486 on the burden, or lack of it, of

-1-

federal habeas corpus petitions by state prisoners was a first rate job. Do you
agree? Or are there aspects of the problem I have overlooked. One aspect it
seems to me the article overlooked is the curve of the prison population.

I would like somehow to calculate the cost of habeas corpus petitions in the
federal court as, say a percentage of total judicial expense. Do you have any
suggestions as to what the relevant questions might be and how the figures
could be obtained? The question of cost seems to me always relevant, though I
am not sure it can be ascertained.

In my section (a new section) on original writs (I rely heavily on Oaks) I
suggest that an original writ might be justified in an instance where it is necessary
to have both respondent and petitioner within the territorial jurisdiction of the
court when this can’t be done in a district court. Do you agree this might
be a justification? Can you think of any others, other than when a state or
ambassador, etc. is involved at the Sup. Ct. level?

On the question of custody, can you suggest a clear example of when the
writ might be available in a federal court to release someone subject to
private[underline] restraint? I’m having difficulty with this. If a child custody order
is issued in violation of the Const., say for lack of adequate notice, is there any
conceptual objection to utilizing federal habeas corpus other than the general
notion that domestic relations falls within the domain of the states? Wouldn’t
the fed. ct. have power[underline] to issue the writ under [section]2241 (c) (3)? I’m afraid
I’ve thrown a lot of questions at you that you may not have the time to answer.
If not, I recognize and accept fully the pressure of time, being only too
aware of it myself.

Incidentally, Mostyn writes me that he’s interested in taking off from his
practice for a couple of years. Frankly I don’t know whether he’s
interested in Ala. or whether you are interested. He mentioned to me that he would
like to go to New Mexico. These Englishmen are a strange breed. At any
rate, I throw it out as general background information you might like to keep
in mind.

The political situation looks rather bleak. If either Humphrey or Nixon becomes
president, the prospect for domestic peace and tranquility, not to mention our foreign
crusades, is not especially bright, in my opinion.

I hope you and Jan are having a pleasant summer. I hope to hear from
you before I leave. After the end of this month my plans are still a bit unfirm,
but I shall keep in touch and let you know whenever I alight.

As ever,

Ron

36024 North Beach Road
Oconomowoc, Wisconsin 53066

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