Abstract: The Supreme Court greatly expanded the availability of habeas corpus in the 1950s and 1960s.Brown v. Allen' held that any constitutional question could be raised on habeas.Fay v. Noia 9 allowed a prisoner who had not properly preserved his constitutional claim in the state courts nevertheless to assert the issue in a petition for habeas corpus, so long as he had not "deliberately bypassed" state processes.Jones v. Cunningham' ° held that physical confinement was not necessary in order to meet the requirement that the petitioner be "in custody."After Brown, Fay and Jones, habeas corpus was available to attack virtually any constitutional defect in a state criminal trial.It became quite easy to regard the writ as a kind of appellate review of state criminal judgments, providing a federal forum to guarantee enforcement of the many new federal procedural rights that were made applicable to the states in those decades."No doubt this account accurately reflects the Warren Court's conconstitutional rights, and to deny for all practical purposes a federal forum for review of those rights that this Court deems less worthy or important"); cf.Cover & Aleinikoff 1092 (suggesting that a cost-benefit analysis and a focus on the functions served by rights, as means of determining whether claims will be heard in habeas, are "inconsistent with the very idea of rights").This approach fails to appreciate the nature of the balancing that is at issue.The question in setting the scope of habeas is not whether someone holds a right against the state or whether some state interest might outweigh a person's rights.The question is what rules will be devised for the protection of rights.See H.L.A. HART, THE CONCEPT OF LAW 77-96 (1961) (distinguishing between primary rules, "which are concerned with the actions that individuals must or must not do," and secondary rules, which "specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined," id 92).The existence of a right implies a means for enforcing it, but the conclusion does not follow that other interests may not be taken into account in devising those remedial procedures.For example, a newspaper may assert its first amendment rights in defense of a libel suit.But, if the paper loses, the rules of collateral estoppel bar it from relitigating the issue, however wrong the result may have been.The cost to other values would be too great.When a criminal defendant unsuccessfully asserts his rights at trial and on appeal and is imprisoned, his interest in freedom from unconstitutional confinement may, but does not always, outweigh the competing values and permit relief in habeas.To recognize that other values may diminish the avenues available for protection of constitutional rights is not to insist that rights themselves must be balanced against the state's interests.It is, rather, to appreciate the imperfection of legal procedures as a means of protecting rights and the need to husband the limited economic, political and moral resources available to the legal system.See