Note

Confessions Without Consequence: The Case for Attorney General Deference

­­­The Supreme Court’s recent decisions in Glossip v. Oklahoma and Escobar v. Texas have surfaced an understudied and increasingly consequential phenomenon in American criminal law: the prosecutorial confession of error. Anglo-American courts have recognized such confessions for centuries, and Young v. United States commands that federal courts afford them “great weight.” Yet judicial practice has grown increasingly inconsistent—most acutely at the state level, where courts routinely treat confessions as ordinary litigation positions rather than as the considered judgment of the sovereign’s chief law officers. This dysfunction reaches its apex when the confessor is a state attorney general, whose constitutional authority, democratic legitimacy, and investigative capacity distinguish them from every other prosecutorial actor. Glossip illustrates the problem starkly: the Oklahoma Attorney General confessed error in a capital case after a comprehensive independent investigation, only to have the Oklahoma Court of Criminal Appeals dismiss the confession as “not based in law or fact.”

Pulling from state case law that the literature has largely ignored, this Note argues that the current approach cannot be defended. It proposes a structured four-factor framework—merits, motives, institutional credibility, and equities—designed to restore coherence to confession-of-error doctrine, to vindicate the unique institutional role of state attorneys general, and to ensure that when the State concedes its case cannot stand, the judiciary listens.

Introduction

When Oklahoma Attorney General Gentner Drummond reviewed Richard Glossip’s capital murder case, he formally confessed error.1 1.Glossip v. Oklahoma, 145 S. Ct. 612, 623–27 (2025) (describing the Attorney General’s confession of error, including acknowledgment of prosecutorial misconduct and failure to correct false testimony under Napue v. Illinois, 360 U.S. 264 (1959)).Show More Following an independent investigation commissioned by the state legislature,2 2.See id. at 621 (describing an independent investigation conducted by law firm Reed Smith).Show More Drummond concluded that prosecutorial misconduct had fatally compromised Glossip’s conviction. The Oklahoma Court of Criminal Appeals (“OCCA”) responded with dismissiveness, stating that “[t]he State’s concession is not based in law or fact.”3 3.Glossip v. State, 2023 OK CR 5, ¶ 25, 529 P.3d 218, 226.Show More The OCCA offered little explanation for this rejection and ultimately declined to vacate Glossip’s death sentence.4 4.See id. ¶ 12.Show More This extraordinary rejection of a confession of error reflects a doctrine overlooked, where state court approaches to prosecutorial confessions remain inconsistent and underdeveloped as lives hang in the balance.5 5.Ironically, Oklahoma had adopted a highly deferential regime, granting relief in all 298 cases involving confessions of error between 1908 and 2022, before departing from that century-long practice in this very case, underscoring the doctrine’s current instability. See, e.g., Brief of the National Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 2, Glossip v. Oklahoma, 145 S. Ct. 612 (2025) (No. 22-7466) [hereinafter NACDL Brief] (“Indeed, in all 298 cases involving confessions of error between 1908 and 2022, the OCCA ultimately granted relief to the defendant.”).Show More Weeks later, the Texas Court of Criminal Appeals (“TCCA”) followed suit,6 6.Ex parte Escobar, 676 S.W.3d 664, 672–75 (Tex. Crim. App. 2023).Show More rejecting the Travis County District Attorney’s confession in Areli Escobar’s capital case even though the Supreme Court had previously remanded the case “in light of the confession of error.”7 7.Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).Show More Escobar then returned to the Supreme Court, with one question presented squarely addressing the confession-of-error component—namely, whether the Fourteenth Amendment’s Due Process Clause requires reversal when “a capital conviction is so infected with errors that the State no longer seeks to defend it.”8 8.Petition for a Writ of Certiorari at i, Escobar v. Texas, 145 S. Ct. 1423 (2025) (mem.) (No. 23-934).Show More The Supreme Court denied certiorari, leaving the doctrinal issue alive and unwell.9 9.Escobar, 145 S. Ct. at 1423 (denying certiorari).Show More

Glossip and Escobar reveal a deference doctrine unadopted in state courts. At the federal level, Young v. United States asks that courts give “great weight” to confessions of error by federal prosecutors.10 10.Young v. United States, 315 U.S. 257, 258–59 (1942) (“The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.”).Show More But the established analogs in state courts oftentimes prove toothless.11 11.The TCCA exemplifies this judicial resistance. While dutifully reciting that confessions are entitled to “great weight”—if acknowledged at all—the TCCA proceeds to reject them outright, typifying the broader failure to honor deference principles in criminal post-conviction litigation. See, e.g., Ex parte Escobar, 676 S.W.3d at 672, 674–75 (acknowledging that “the State’s confession of error in a criminal case is important and carries great weight” but that “we are not bound by it” and rejecting the Travis County District Attorney’s confession despite the prosecution’s reexamination finding due process violations based on false DNA evidence (quoting Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010))); Rogers v. State, 594 S.W.3d 432, 434–35 (Tex. App. 2019) (conducting independent review before rejecting the State’s confession); infra Part II (examining state court treatments of confessions of error across a variety of states).Show More When state courts continue to imprison defendants despite credible confessions of error by state prosecutors, they undermine notions of fundamental fairness, separation of powers principles, and predictability in the law.12 12.Federal courts apply the doctrine with similar inconsistency, with most circuits showing little deference. See, e.g., United States v. Ramirez, 606 F.3d 396, 398 (7th Cir. 2010) (indicating that the correct standard given the facts and circumstances in the case was plain error); United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996) (stating that the government’s opinion concerning a defendant’s right to a new trial did not bind the court); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) (acknowledging that the government’s concession of error and desire to vacate a sentence do not automatically govern an appellate court’s ruling).Show More

State courts compound this dysfunction by overlooking institutional distinctions within the prosecutorial hierarchy. Although prosecutors generally warrant some degree of deference when confessing error, confessions by attorneys general—who are elected officials with statewide constitutional authority to represent the sovereign—should receive heightened deference. This Note argues for such meaningful deference to attorney general confessions, but the Court’s decision in Glossip reflects a more fundamental concern: state courts’ refusal to honor any prosecutorial confession, even when both parties agree that a conviction cannot stand.13 13.Advisory Opinions: A Dispatch Podcast, Blockbuster Cases, The Dispatch, at 45:15 (July 10, 2025), https://thedispatch.com/podcast/advisoryopinions/blockbuster-cases/ [https:/‌/perma.cc/SX7G-GVK3] (featuring Professor Daniel Epps arguing that the case was a “cause célèbre” and that the Court recognized the injustice of the Glossip case and tried to find an equitable outcome).Show More While some state courts do formally acknowledge the attorney general’s position, they do not discuss the attorney general’s uniquely situated legal role and do not provide the meaningful deference this Note argues for.14 14.See, e.g., Marks v. State, 496 P.2d 66, 67–68 (Alaska 1972); People v. Hayes, 699 P.2d 1259, 1263 (Cal. 1985) (acknowledging the Attorney General’s confession of error and, after independent review, concluding that the record “fully supports” the confession, without explaining why the Attorney General’s institutional role warranted consideration); State v. Maes, 665 P.2d 1169, 1171–72 (N.M. Ct. App. 1983) (quoting Marks for the proposition that courts must undertake independent review despite a confession—illustrating cross-jurisdictional adoption of the independent-review standard without engagement with the confessor’s institutional role).Show More This institutional blindness reduces all prosecutorial confessions to mere litigation positions, ignoring the unique democratic, constitutional, and functional virtues that distinguish state attorneys general from sovereign litigators at every other level—local, state, and federal.15 15.See infra Section III.B for a discussion of these virtues.Show More

This Note addresses a critical gap in both scholarship and case law. While existing literature examines the Solicitor General’s confessions before the Supreme Court, practically no scholarship examines the confessions of state attorneys general in state court or state prosecutorial confessions writ large16 16.See Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027, 3029–30 (2013) (examining the Solicitor General’s practice before the Supreme Court); see also Charles L. Maak, Note, The Confession of Error, 1968 Utah L. Rev. 286, 287 (surveying state and federal confession-of-error practices); Alexander L. Merritt, Note, Confession of Error by Administrative Agencies, 67 Wash. & Lee L. Rev. 1197, 1198–99 (2010) (analyzing confession of error in the administrative law context).Show More—despite their increasing relevance across criminal contexts.17 17.See infra Part III (discussing Glossip and Escobaras two major recent cases).Show More The Note undertakes an extensive review of state case law and federal appellate decisions originating in state court. It reveals that state courts consistently deny what this Note terms “meaningful deference” to executive admissions, particularly those from state attorneys general despite their distinctive institutional position.

The Note proposes a structured framework to replace the ad hoc approach currently governing confession doctrine. The absence of principled evaluative standards produces unpredictability and inequality when courts review prosecutorial confessions. A uniform analytical framework—built on four weighted factors—provides a blueprint without dictating outcomes or stripping state courts of institutional autonomy. By offering courts a common set of considerations adaptable to varied state procedures, this framework ensures that deference has substantive meaning across jurisdictions while highlighting why state attorneys general merit unique treatment.

The Note proceeds in four parts. Part I defines confession-of-error doctrine and examines its development. Part II surveys the modern landscape. Part III emphasizes the indeterminate nature of modern judicial approaches. Part IV proposes a manageable framework and applies it to high-profile cases while anticipating objections.

  1.  Glossip v. Oklahoma, 145 S. Ct. 612, 623–27 (2025) (describing the Attorney General’s confession of error, including acknowledgment of prosecutorial misconduct and failure to correct false testimony under Napue v. Illinois, 360 U.S. 264 (1959)). ↑
  2.  See id. at 621 (describing an independent investigation conducted by law firm Reed Smith). ↑
  3.  Glossip v. State, 2023 OK CR 5, ¶ 25, 529 P.3d 218, 226. ↑
  4.  See id. ¶ 12. ↑
  5.  Ironically, Oklahoma had adopted a highly deferential regime, granting relief in all 298 cases involving confessions of error between 1908 and 2022, before departing from that century-long practice in this very case, underscoring the doctrine’s current instability. See, e.g., Brief of the National Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 2, Glossip v. Oklahoma, 145 S. Ct. 612 (2025) (No. 22-7466) [hereinafter NACDL Brief] (“Indeed, in all 298 cases involving confessions of error between 1908 and 2022, the OCCA ultimately granted relief to the defendant.”). ↑
  6.  Ex parte Escobar, 676 S.W.3d 664, 672–75 (Tex. Crim. App. 2023). ↑
  7.  Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.). ↑
  8.  Petition for a Writ of Certiorari at i, Escobar v. Texas, 145 S. Ct. 1423 (2025) (mem.) (No. 23-934). ↑
  9.  Escobar, 145 S. Ct. at 1423 (denying certiorari). ↑
  10.  Young v. United States, 315 U.S. 257, 258–59 (1942) (“The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.”). ↑
  11.  The TCCA exemplifies this judicial resistance. While dutifully reciting that confessions are entitled to “great weight”—if acknowledged at all—the TCCA proceeds to reject them outright, typifying the broader failure to honor deference principles in criminal post-conviction litigation. See, e.g., Ex parte Escobar, 676 S.W.3d at 672, 674–75 (acknowledging that “the State’s confession of error in a criminal case is important and carries great weight” but that “we are not bound by it” and rejecting the Travis County District Attorney’s confession despite the prosecution’s reexamination finding due process violations based on false DNA evidence (quoting Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010))); Rogers v. State, 594 S.W.3d 432, 434–35 (Tex. App. 2019) (conducting independent review before rejecting the State’s confession); infra Part II (examining state court treatments of confessions of error across a variety of states). ↑
  12.  Federal courts apply the doctrine with similar inconsistency, with most circuits showing little deference. See, e.g., United States v. Ramirez, 606 F.3d 396, 398 (7th Cir. 2010) (indicating that the correct standard given the facts and circumstances in the case was plain error); United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996) (stating that the government’s opinion concerning a defendant’s right to a new trial did not bind the court); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) (acknowledging that the government’s concession of error and desire to vacate a sentence do not automatically govern an appellate court’s ruling). ↑
  13.  Advisory Opinions: A Dispatch Podcast, Blockbuster Cases, The Dispatch, at 45:15 (July 10, 2025), https://thedispatch.com/podcast/advisoryopinions/blockbuster-cases/ [https:/‌/perma.cc/SX7G-GVK3] (featuring Professor Daniel Epps arguing that the case was a “cause célèbre” and that the Court recognized the injustice of the Glossip case and tried to find an equitable outcome). ↑
  14.  See, e.g., Marks v. State, 496 P.2d 66, 67–68 (Alaska 1972); People v. Hayes, 699 P.2d 1259, 1263 (Cal. 1985) (acknowledging the Attorney General’s confession of error and, after independent review, concluding that the record “fully supports” the confession, without explaining why the Attorney General’s institutional role warranted consideration); State v. Maes, 665 P.2d 1169, 1171–72 (N.M. Ct. App. 1983) (quoting Marks for the proposition that courts must undertake independent review despite a confession—illustrating cross-jurisdictional adoption of the independent-review standard without engagement with the confessor’s institutional role). ↑
  15.  See infra Section III.B for a discussion of these virtues. ↑
  16.  See Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027, 3029–30 (2013) (examining the Solicitor General’s practice before the Supreme Court); see also Charles L. Maak, Note, The Confession of Error, 1968 Utah L. Rev. 286, 287 (surveying state and federal confession-of-error practices); Alexander L. Merritt, Note, Confession of Error by Administrative Agencies, 67 Wash. & Lee L. Rev. 1197, 1198–99 (2010) (analyzing confession of error in the administrative law context). ↑
  17.  See infra Part III (discussing Glossip and Escobar as two major recent cases). ↑

Post-Conviction Channeling

­­­­People seeking to vacate their criminal convictions face bleak prospects. The reasons for this are myriad, from deferential standards of review to blanket bans on entire categories of claims. Yet lurking beneath these contributors is another, lesser-studied problem: when petitioners seek post-conviction relief, their cases are often decided by the same judges who presided over their trials or accepted their guilty pleas. That practice—which this Note calls “judge channeling”—is widespread, with most jurisdictions adopting it through either formal rules or informal practices. Proponents argue that judge channeling maximizes judicial economy because the trial judge’s familiarity with a case enables more efficient claim resolution. However, a robust body of social science research reveals a devastating trade-off: unconscious biases prevent judges from recognizing their own errors, hobbling petitioners seeking to challenge their convictions and vindicate meritorious claims. Prior scholarship has emphasized normative problems with judge channeling, but the analysis ends there. This Note intervenes in that narrow discourse by making two novel contributions to existing literature. First, it offers the first comprehensive study of state channeling procedures, explaining what they do and how they differ across jurisdictions. Second, this Note lays out alternative procedures that balance independent review with deliberative efficiency, and it considers which institutions are best poised to bring those procedures to life.

Introduction

In the popular imagination, the life cycle of a criminal case begins with an indictment and ends on appeal. For many defendants, however, exhaustion of direct appeal marks the beginning, not the end. There also exists a vast universe of post-conviction relief, including federal and state habeas corpus, writs of error, actual innocence petitions, and more. Those convicted at trial face a steep uphill battle, with only twelve percent of state convictions1 1.Nicole L. Waters, Anne Gallegos, James Green & Martha Rozsi, U.S. Dep’t of Just., Criminal Appeals in State Courts 1 (2015), https://bjs.ojp.gov/content/pub/pdf/casc.pdf [http‌s://perma.cc/2M64-RMA2].Show More and less than seven percent of federal convictions2 2.Just the Facts: U.S. Courts of Appeals, Admin. Off. of the U.S. Cts. tbl. 2 (Dec. 20, 2016), https://www.uscourts.gov/data-news/judiciary-news/2016/12/20/just-facts-us-courts-a‌ppeals [https://perma.cc/T9C7-5HW7].Show More being reversed on appeal. And if direct appeal is a hill, then post-conviction relief is a mountain: less than one percent of federal habeas petitions succeed,3 3.Nancy J. King & Joseph L. Hoffmann, Envisioning Post-Conviction Review for the Twenty-First Century, 78 Miss. L.J. 433, 437 (2008).Show More and state habeas presents similar challenges.4 4.Aggregated state habeas data is elusive, but studies focused on particular states and case types support this claim. See, e.g., David R. Dow & Jeffrey R. Newberry, Reversal Rates in Capital Cases in Texas, 2000–2020, 68 UCLA L. Rev. Discourse 2, 12 (2020) (finding a 5.6% success rate on state habeas review of death penalty cases in Texas); Mary K. McComb, Off. of the State Pub. Def., California’s Broken Death Penalty: It’s Time to Stop Tinkering with the Machinery of Death 58–59 (2021), https://www.ospd.ca.gov/wp-cont‌ent/uploads/2024/04/White-Paper.pdf [https://perma.cc/5HDM-UHHZ] (finding that the California Supreme Court has granted habeas relief in 4% of state capital cases since 1978).Show More

That dire prognosis makes sense on some level. After a defendant has pled guilty or lost at trial, and after they have benefitted from the rigors of direct appeal, post-conviction relief should be an uncommon remedy. Yet innocent people are convicted and imprisoned notwithstanding these safeguards,5 5.See Charles E. Loeffler, Jordan Hyatt & Greg Ridgeway, Measuring Self-Reported Wrongful Convictions Among Prisoners, 35 J. Quantitative Criminology 259, 259, 261, 276 (2019) (estimating that 6% of non-capital state offenders are factually innocent).Show More so there must be reasons other than guilt that explain their continued incarceration. Many of these reasons are procedural: people seeking habeas relief must navigate a tangled labyrinth of exhaustion requirements, procedural default rules, statutes of limitations, and bars to successive petitions—obstacles that also pervade state law.6 6.See infra Section I.A.Show More Layered atop these rules governing challenges to legally defective convictions are additional rules that make proving innocence exceedingly difficult for those afforded the full panoply of constitutional rights.7 7.See infra Section I.C. See generally Daniel S. Medwed, Barred: Why the Innocent Can’t Get Out of Prison (2022) (exploring procedural barriers to proving innocence after conviction).Show More

These procedural hurdles matter, but hiding in plain sight is another potent factor that shapes case outcomes: who decides the case. The availability of post-conviction relief is often determined by the same judge who presided over the petitioner’s trial or accepted their guilty plea, a phenomenon this Note calls “judge channeling.” The practice is popular, with most jurisdictions having statutes, judicial rules, and informal practices that permit, and in some cases require, the original trial judge to adjudicate petitions for post-conviction relief.8 8.See infra Section II.B; Appendix.Show More Defenders of judge channeling argue that the trial judge’s familiarity with the facts and issues animating a case allows them to dispose of cases more efficiently.9 9.See infra Section II.A.Show More This Note turns that argument on its head: familiarity with the underlying case is precisely the issue, creating blind spots and preventing the correction of judicial errors—sometimes grave and consequential ones.

Despite its popularity among legislatures and courts, judge channeling has long been a target of attack in the academic literature surrounding post-conviction procedure.10 10.See, e.g., Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 679, 699–708 (2005) [hereinafter Medwed, Up the River Without a Procedure]; Daniel S. Medwed, California Dreaming? The Golden State’s Restless Approach to Newly Discovered Evidence of Innocence, 40 U.C. Davis L. Rev. 1437, 1472–75 (2007) [hereinafter Medwed, California Dreaming?]; Eli Paul Mazur, “I’m Innocent”: Addressing Freestanding Claims of Actual Innocence in State and Federal Courts, 25 N.C. Cent. L.J. 197, 230–34 (2003); Stephanie Roberts Hartung, Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases, 10 Stan. J.C.R. & C.L. 55, 61–62 (2014); Joseph M. Bowman, Note, Processing a Motion Attacking Sentence Under Section 2255 of the Judicial Code, 111 U. Pa. L. Rev. 788, 800–02 (1963). As these titles suggest, most prior scholarship addresses innocence claims specifically rather than post-conviction relief more generally.Show More However, no piece of legal scholarship has made post-conviction judge assignment its exclusive or even primary focus. This Note fills that gap. While it leans on past normative critiques, it also makes two novel contributions of its own. The first contribution is descriptive, providing the first comprehensive survey of state post-conviction channeling procedures. The second contribution is prescriptive, introducing and comparing alternative ways of adjudicating post-conviction claims. Prior work begins and ends by pointing out a problem; this Note takes the additional steps of analyzing that problem in detail and offering workable solutions.

This Note proceeds in four parts. Part I broadly surveys post-conviction relief in the United States, paying special attention to habeas corpus, writs of error, and claims of actual innocence. Part II explores the phenomenon of post-conviction judge channeling, describing what it is, how it works across jurisdictions, and the general arguments marshaled in its favor. Part III then pivots from the descriptive to the normative, explaining how judge channeling entrenches bias, ossifies error, and deprives petitioners of meaningful review. Finally, Part IV considers alternative models of post-conviction adjudication that would better allow petitioners to vindicate meritorious claims without forfeiting judicial economy. In doing so, it explores what alternative regimes might look like and how reform might take place.

  1.  Nicole L. Waters, Anne Gallegos, James Green & Martha Rozsi, U.S. Dep’t of Just., Criminal Appeals in State Courts 1 (2015), https://bjs.ojp.gov/content/pub/pdf/casc.pdf [http‌s://perma.cc/2M64-RMA2]. ↑
  2.  Just the Facts: U.S. Courts of Appeals, Admin. Off. of the U.S. Cts. tbl. 2 (Dec. 20, 2016), https://www.uscourts.gov/data-news/judiciary-news/2016/12/20/just-facts-us-courts-a‌ppeals [https://perma.cc/T9C7-5HW7]. ↑
  3.  Nancy J. King & Joseph L. Hoffmann, Envisioning Post-Conviction Review for the Twenty-First Century, 78 Miss. L.J. 433, 437 (2008). ↑
  4.  Aggregated state habeas data is elusive, but studies focused on particular states and case types support this claim. See, e.g., David R. Dow & Jeffrey R. Newberry, Reversal Rates in Capital Cases in Texas, 2000–2020, 68 UCLA L. Rev. Discourse 2, 12 (2020) (finding a 5.6% success rate on state habeas review of death penalty cases in Texas); Mary K. McComb, Off. of the State Pub. Def., California’s Broken Death Penalty: It’s Time to Stop Tinkering with the Machinery of Death 58–59 (2021), https://www.ospd.ca.gov/wp-cont‌ent/uploads/2024/04/White-Paper.pdf [https://perma.cc/5HDM-UHHZ] (finding that the California Supreme Court has granted habeas relief in 4% of state capital cases since 1978). ↑
  5.  See Charles E. Loeffler, Jordan Hyatt & Greg Ridgeway, Measuring Self-Reported Wrongful Convictions Among Prisoners, 35 J. Quantitative Criminology 259, 259, 261, 276 (2019) (estimating that 6% of non-capital state offenders are factually innocent). ↑
  6.  See infra Section I.A. ↑
  7.  See infra Section I.C. See generally Daniel S. Medwed, Barred: Why the Innocent Can’t Get Out of Prison (2022) (exploring procedural barriers to proving innocence after conviction). ↑
  8.  See infra Section II.B; Appendix. ↑
  9.  See infra Section II.A. ↑

  10.  See, e.g., Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 679, 699–708 (2005) [hereinafter Medwed, Up the River Without a Procedure]; Daniel S. Medwed, California Dreaming? The Golden State’s Restless Approach to Newly Discovered Evidence of Innocence, 40 U.C. Davis L. Rev. 1437, 1472–75 (2007) [hereinafter Medwed, California Dreaming?]; Eli Paul Mazur, “I’m Innocent”: Addressing Freestanding Claims of Actual Innocence in State and Federal Courts, 25 N.C. Cent. L.J. 197, 230–34 (2003); Stephanie Roberts Hartung, Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases, 10 Stan. J.C.R. & C.L. 55, 61–62 (2014); Joseph M. Bowman, Note, Processing a Motion Attacking Sentence Under Section 2255 of the Judicial Code, 111 U. Pa. L. Rev. 788, 800–02 (1963). As these titles suggest, most prior scholarship addresses innocence claims specifically rather than post-conviction relief more generally. ↑

Crystals and Mud in International Taxation: Why the Principal Purpose Test’s Impact Will Not Meet Expectations

This Note takes a fresh look at the Principal Purpose Test (“PPT”), which has been added to over 2,300 bilateral tax treaties since 2015 in an effort to fight tax avoidance. Under the PPT, countries may deny treaty benefits—such as lower tax rates on cross-border income—if it is reasonable for them to conclude that a taxpayer arranged a transaction principally to obtain those benefits.

Critics are skeptical of this rule. They argue that it is too vague and that it confers too much power on tax authorities. But this Note argues that those concerns may be overstated for two primary reasons. First, legal history shows that flexible standards like the PPT tend to become clearer over time, as courts and tax administrations develop more consistent—and more rule-like—interpretations. Second, although some countries might deploy the PPT aggressively, others can interpret it narrowly in an effort to continue attracting multinational businesses.

Whatever the PPT’s ultimate effect, the test will not dramatically reshape international taxation schemes. The PPT’s practical impact will not just be about the text of the test—it will be determined by how different countries choose to enforce it.

Introduction

The early 2010s represent perhaps the only time period in which international tax policy regularly filled the pages of the world’s largest newspapers.1 1.See, e.g., Jia Lynn Yang, Post Analysis of Dow 30 Firms Shows Declining Tax Burden as a Share of Profits, Wash. Post (Mar. 26, 2013), https://www.washingtonpost.com/business/eco‌nomy/post-analysis-of-dow-30-firms-shows-declining-tax-burden-as-a-share-of-profits/2013‌/03/26/3dfe5132-7b9a-11e2-82e8-61a46c2cde3d_story.html.Show More With the global economy still reeling from the 2008 financial crisis, national governments in the United States and Europe publicly questioned the tax bills paid by the world’s largest companies.2 2.For a comprehensive discussion of these investigations and the ensuing public response, see Ruth Mason, The Transformation of International Tax, 114 Am. J. Int’l L. 353, 364–65 (2020). Show More The results of these investigations created a push for international tax changes by entities like the Organisation for Economic Co-operation and Development (“OECD”) and the Group of Twenty (“G20”).3 3.See Yariv Brauner, What the BEPS?, 16 Fla. Tax Rev. 55, 56–57, 60 (2014) [hereinafter Brauner, What the BEPS?].Show More

This Note discusses one component of these changes—a provision called the Principal Purpose Test (“PPT”). The PPT purports to target the abuse of tax treaties by allowing tax administrations to deny treaty benefits to a taxpayer if it is reasonable to conclude the taxpayer entered into a transaction principally to obtain those benefits.4 4.See OECD, Model Tax Convention on Income and on Capital art. 29(9) cmt. ¶¶ 176–177 (2017) [hereinafter OECD, 2017 Model], https://www.oecd.org/content/dam/oecd/en/publicat‌ions/reports/2019/04/model-tax-convention-on-income-and-on-capital-2017-full-version_g1‌g972ee/g2g972ee-en.pdf [https://perma.cc/S82G-DH5A].Show More Commentators have described the power of the PPT in the hands of tax administrations in dramatic language, referencing the atomic bomb,5 5.Lee A. Sheppard, The PPT Through the Lens of the India-Mauritius Protocol, 114 Tax Notes Int’l 1147, 1149 (2024); see, e.g., Eran Levy, Is the Principal Purpose Test an “Atomic Bomb” and Should It Be Used Against Treaty Abuse?, Mich. J. Int’l L. Blog (Dec. 2017), http‌s://www.mjilonline.org/eranlevy/ [https://perma.cc/HN4N-5S6N].Show More the COVID-19 pandemic,6 6.See Sheppard, supra note 5, at 1149.Show More and Sauron’s Ring of Power.7 7.See Craig Elliffe, The Meaning of the Principal Purpose Test: One Ring to Bind Them All?, 11 World Tax J. 47 (2019).Show More To those commentators, the PPT promises to fundamentally alter the world of tax treaties for the worse. Their perspective is based upon the PPT’s language, which can be read as broader than most similarly constructed anti-abuse rules;8 8.For example, the United States’ “business purpose” doctrine identifies and disallows transactions where a taxpayer was “motivated by no business purpose other than obtaining tax benefits.” Mixed tax and business purposes are permissible. Austin v. Comm’r, 113 T.C.M. (CCH) 69, 2017 WL 1437879, at *10–11 (Apr. 24, 2017) (first citing Gregory v. Helvering, 293 U.S. 465 (1935); and then citing Rice’s Toyota World, Inc. v. Comm’r, 752 F.2d 89, 91–92 (4th Cir. 1985)).Show More its authors—a large collection of countries—having specifically encouraged a sweeping interpretation;9 9.See OECD, 2017 Model, supra note 4.Show More and its status as a cornerstone of a global tax initiative aimed at transforming international tax.10 10.See Mason, supra note 2, at 364–65 (arguing that the G20/OECD’s project changed international tax’s participants, agenda, institutions, norms, and legal forms).Show More However, a contextualized approach to predicting the PPT’s effects suggests that commentators have overstated the test’s ultimate impact. This Note situates the PPT within the larger framework of tax competition and looks to the literature on legal form to paint what may be a more realistic picture of the provision’s ultimate impact.

This Note proceeds in five parts. Part I provides background on international tax policy, highlighting recent G20/OECD initiatives to change key elements of the international tax system. Part II introduces the PPT, its intended role in curbing treaty abuse, and the praise and criticism it has received. Part III argues that critics’ concerns about legal uncertainties created by the PPT are overstated in terms of the rule’s ultimate impact. The literature on legal form recognizes that standards become more rule-like as part of an everlasting oscillation between the two forms, and there is no reason to believe the PPT—currently a standard—is any different. Therefore, a focus on the PPT’s initial stage may obscure a future time when the provision will be more certain and targeted in scope. Part IV considers the potential moderating impact of tax competition on the interpretation of the PPT. The literature on legal form allows us to understand that the PPT’s open-ended design delegates discretion over its interpretation from the OECD to individual states, some of which wish to encourage defined and manageable corporate tax standards.11 11.See infra Part IV.Show More Thus, while the PPT’s language might raise overbreadth concerns on first reading, an analysis sensitive to international taxation’s competitive structure may indicate a more nuanced story to come. The Conclusion drives home this Note’s central thesis: viewed in proper context, the PPT may ultimately not be the “atomic bomb” of international tax.12 12.See Sheppard, supra note 5, at 1148–49; Levy, supra note 5.Show More

  1.  See, e.g., Jia Lynn Yang, Post Analysis of Dow 30 Firms Shows Declining Tax Burden as a Share of Profits, Wash. Post

    (Mar

    . 26, 2013),

    https://www.washingtonpost.com/business/eco‌nomy/post-analysis-of-dow-30-firms-shows-declining-tax-burden-as-a-share-of-profits/2013‌/03/26/3dfe5132-7b9a-11e2-82e8-61a46c2cde3d_story.html. ↑

  2. F

    or a comprehensive discussion of these investigations and the ensuing public response, see Ruth Mason, The Transformation of International Tax,

    114

    Am. J. Int’l L.

    353, 364–65 (2020).

    ↑

  3.  See Yariv Brauner, What the BEPS?, 16 Fla. Tax Rev.
    55, 56–57, 60 (2014

    ) [hereinafter Brauner, What the BEPS?]. ↑

  4.  See OECD, Model Tax Convention on Income and on Capital art. 29(9) cmt. ¶¶ 176–177 (2017) [hereinafter OECD, 2017 Model], https://www.oecd.org/content/dam/oecd/en/publicat‌ions/reports/2019/04/model-tax-convention-on-income-and-on-capital-2017-full-version_g1‌g972ee/g2g972ee-en.pdf [https://perma.cc/S82G-DH5A]. ↑
  5.  Lee A. Sheppard, The PPT Through the Lens of the India-Mauritius Protocol, 114 Tax Notes Int’l
    1147, 1149 (2024);

    see, e.g., Eran Levy, Is the Principal Purpose Test an “Atomic Bomb” and Should It Be Used Against Treaty Abuse?, Mich. J. Int’l L. Blog (Dec.

    2017

    ), http‌s://www.mjilonline.org/eranlevy/ [https://perma.cc/HN4N-5S6N]. ↑

  6.  See Sheppard, supra note 5, at 1149. ↑
  7.  See Craig Elliffe, The Meaning of the Principal Purpose Test: One Ring to Bind Them All?, 11 World Tax J. 47 (2019). ↑
  8.  For example, the United States’ “business purpose” doctrine identifies and disallows transactions where a taxpayer was “motivated by no business purpose other than obtaining tax benefits.” Mixed tax and business purposes are permissible. Austin v. Comm’r, 113 T.C.M. (CCH) 69, 2017 WL 1437879, at *10–11 (Apr. 24, 2017) (first citing Gregory v. Helvering, 293 U.S. 465 (1935); and then citing Rice’s Toyota World, Inc. v. Comm’r, 752 F.2d 89, 91–92 (4th Cir. 1985)). ↑
  9.  See OECD,
    2017

    Model

    ,

    supra note 4. ↑

  10.  See Mason, supra note 2, at 364–65 (arguing that the G20/OECD’s project changed international tax’s participants, agenda, institutions, norms, and legal forms). ↑
  11.  See infra Part IV. ↑
  12.  See Sheppard, supra note 5, at 1148–49; Levy, supra note 5. ↑
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