“When the Death Count Gets Higher”: An Empirical Examination of Whether the Federal Courts of Appeals Have Authentically Enforced Atkins v. Virginia

The authors of this article review the history and development of the general anti-avoidance rule (GAAR) in section 245 of the Income Tax Act (Canada), for the purpose of assisting in the analysis of recent decisions of the federal and provincial courts of appeal. They discuss the inherent difficulty in construing section 245 and outline various tests that the courts could have employed to interpret its provisions. The authors then review three of the four decisions in which the Supreme Court of Canada interpreted GAAR—<i>Canada Trustco</i>, <i>Mathew</i>, and <i>Copthorne</i>. With that background, the authors contrast the different approaches to the provincial general anti-avoidance rules taken, on the one hand, by the Alberta Court of Appeal in <i>Husky Energy</i> and <i>Canada Safeway</i>, the Ontario Court of Appeal in <i>Inter-Leasing</i>, and the BC Court of Appeal in <i>Veracity</i>, and, on the other hand, by the Quebec Court of Appeal in <i>OGT</i> <i>Holdings</i> and <i>Iberville</i>. They then compare and contrast those approaches with the pronouncements of the Supreme Court of Canada on how GAAR should be interpreted. The authors also discuss the approach taken by the Federal Court of Appeal in four recent GAAR decisions—<i>Univar</i>, <i>Oxford Properties</i>, <i>594710 British Columbia Ltd.</i>, and <i>Birchcliff</i>. They compare and contrast that approach with the approaches of the provincial courts, and consider whether the Federal Court of Appeal's approach is consistent with the Supreme Court of Canada's pronouncements on GAAR. Finally, the authors offer some advice for tax planners based on the recent GAAR decisions of the various courts of appeal.

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevrondeference— the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1,558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevrondeference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevrondeference than when they did not. Among many other findings, our study reveals important differences across circuits, agencies, agency formats, and subject matters as to judicial review of agency statutory interpretations. Based on prior empirical studies of judicial deference at the Supreme Court, however, our findings suggest that there may be a ChevronSupreme and a ChevronRegular: whereas Chevronmay not have much of an effect on agency outcomes at the Supreme Court, Chevron deference seems to matter in the circuit courts. That there is a ChevronSupreme and a ChevronRegular may suggest that, in Chevron, the Supreme Court has an effective tool to supervise lower courts’ review of agency statutory interpretations. To render Chevron more effective in creating uniformity throughout the circuit courts, the Supreme Court needs to send clearer signals on how courts should apply the deference standard.

Chevron in the Circuit Courts

The Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean? The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions. In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment. The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution. However, the promise of Bajakajian has been undermined in the lower courts. This Article presents the first systematic analysis of how Bajakajian has been interpreted and applied by the federal circuit courts of appeals. The Article shows that, at practically every turn, the circuit courts have adopted narrowing interpretations of Bajakajian, which have largely negated the practical significance of the Eighth Amendment ban on excessive fines. Indeed, in some important respects, the circuit-court opinions more closely resemble the dissenting than the majority opinion in Bajakajian. The Article concludes with a consideration of what the Supreme Court might do in response to the circuit-court cases, from acquiescence to simple reaffirmation of Bajakajian to the development of an even more robust and easily enforceable approach to the Eighth Amendment right.

This Article examines the effects of judicial emergencies on the federal district courts. The Administrative Office of the U.S. Courts declares judicial emergencies when a weighted statistic of filings and vacancy days exceeds certain thresholds. This Article presents evidence on the relationship between emergency status in a judicial circuit and the frequency of pretrial disposition in federal district courts within that circuit: a federal district court is statistically more likely to dismiss a case before trial if its corresponding circuit court is in emergency. This evidence suggests that emergency status may affect normative expectations between the federal district courts and the federal courts of appeals. Federal district courts in circuits under stress appear to increase their “gatekeeping” function by reducing the number of full trials that they hear. The evidence presented in this Article also suggests that the stability of vertical norms between the federal district courts and the federal circuit courts plays an important role in the federal district courts fulfilling their trial-like institutional role.

T WICE in the past fifteen years, federal courts of appeals I have been urged to reverse death sentences on the ground that the death penalty was administered along racially discriminatory lines. The first time, in Maxwell v. Bishop,' a petitioner submitted data to show discrimination against black offenders. The second time, in Spinkellink v. Wainwright,2 a petitioner submitted data to show bias against murderers of white victims. The Spinkellink data indicated that such offenders were substantially more likely to end up on death row than were murderers of black victims. Both times, the courts refused to find proof of racial discrimination. Data that have since become available, provided by the criminal justice system itself, make it clear that both kinds of discrimination existed.

Today, persons with intellectual and related disabilities are being seen as citizens in full standing in their own neighborhoods. We see them on the street, on buses, in restaurants—even attending classes in their own neighborhood schools and working at jobs they are able to do. It wasn’t always that way. In earlier years they were seen as objects of rejection. Most were removed from their communities and sent to live in large, out-of-the-way, state-funded institutions. Now that they are back in the midst of our neighborhoods, we are learning to understand and support them as never before. Most—but not all—seek to be friendly with local police officers. They do it because they need to depend on authority figures around them to live in the community successfully. Police officers need to know that some tend to be overly vulnerable and pliable when placed under pressure in interrogation rooms. In such a situation they may say whatever these authority figures want to hear. They will even confess to crimes they did not commit. Today, 53 persons with intellectual and developmental disabilities have confessed to serious felonies—murder, rape, arson, and robbery—that they did not commit. These cases have been extracted from three sources: They come from my own 30year collection of files and from sifting through a list of all false confessors produced earlier by two of the top experts on all false confessions (Drizin & Leo, 2004). More recently they have been sifted from a constant stream of false confession reports flowing out of the Center on Wrongful Convictions at Northwestern University’s School of Law. All of the 53 individuals have been legally exonerated. The number of persons on this list will increase in the years to come. For example, I can name 15 other false confessors with intellectual disabilities I believe to be innocent, but they will not be placed on this list until they have been exonerated by a formal legal action. Six factors gleaned from this list may be worth pondering:

Back to table of contents Previous article Next article Government NewsFull AccessHigh Court Weighs Standards for Intellectual DisabilityAaron LevinAaron LevinSearch for more papers by this authorPublished Online:31 Mar 2014https://doi.org/10.1176/appi.pn.2014.4a15AbstractThe Supreme Court wants to know if a convicted murderer’s cognitive abilities can be encapsulated in a single number that makes him eligible for the death penalty.The U.S. Supreme Court hears arguments on the standards states adopt to determine if a murderer is eligible to be executed.Joe Ravi/Shutterstock.comJust how intellectually disabled must a convicted murderer be before the state is barred from executing him?That might seem like a complex question to a psychiatrist, but Supreme Court justices spent most of their time one cold March morning asking not about the man who spent 35 years on Florida’s death row but about statistical aspects of his IQ tests.Freddie Lee Hall was convicted of the rape and murder of a 21-year-old woman in 1978. In a prior case, Atkins v. Virginia, in 2002, the Supreme Court held that executing a mentally retarded (now termed “intellectually disabled”) person violated the Eighth Amendment to the Constitution, which prohibits “cruel and unusual punishments.”The Court in Atkins left it up to the states to determine standards for intellectual disability. Florida set the bar at an IQ of 70, along with deficits in adaptive behavior and an onset before age 18. Hall had scored 71 or higher on several IQ tests, making him eligible for the death penalty.Allen Winsor, Florida’s solicitor general, argued that once the prisoner scored above 70, the other two criteria became irrelevant. Furthermore, the state couldn’t have its laws governed by the subjective—and changeable—views of clinicians.The statistical argument revolved around whether a score of 70 was a “bright line,” a number that must be adhered to inflexibly.“Because of the standard error of measurement that is inherent in IQ tests, it is universally accepted that persons with obtained scores of 71 to 75 can, and often do, have mental retardation when those three prongs are met,” argued Hall’s attorney, Seth Waxman, at the March 10 hearing. “If a state conditions the opportunity to demonstrate mental retardation on obtained IQ test scores, it cannot ignore the measurement error that is inherent in those scores that is a statistical feature of the test instrument itself.”APA joined with other mental health organizations in filing an amicus curiae brief with the Court on Hall’s behalf.“We are saying that if a state relies on some definition of mental illness or intellectual disability, then that definition should reflect current research and current thinking,” said Colleen Coyle, J.D, APA’s general counsel. That definition requires more than just a pass/fail grade on an IQ test.APA’s position calls for not only recognizing the standard error of measurement but for applying all three criteria—IQ, functionality, and age of onset—in the context of a full evaluation of the person facing execution.“Using a single IQ score goes against how we think about intellectual disability,” said Richard Frierson, M.D., a professor of psychiatry at the University of South Carolina School of Medicine and director of its forensic psychiatry fellowship. Frierson was not involved in the Hall case.“It is possible to diagnose a person with an IQ score above 70 but who has difficulties with adaptive functioning—their ability to care for themselves or live independently,” said Frierson, in an interview with Psychiatric News.“The oral argument underscored the differing perspectives with respect to the death penalty,” said APA Treasurer David Fassler, M.D., a clinical professor of psychiatry at the University of Vermont. “A majority of the justices seemed skeptical of the limitations imposed by the current Florida law. The prevailing view was that judges and juries should have access to as much information as possible when considering whether or not a defendant is eligible for the death penalty.”APA and other mental health organizations and advocates may have more work ahead of them, regardless of the Court’s decision, which is expected later this spring.“We must better educate judges and lawyers about the role of adaptive functioning to remind them that this is a gray area, not one that is simply black and white,” said Frierson. “There are still so many disparities regarding persons on death row with mental illness and intellectual disability, and it will be interesting to see if the Court takes them up in the future.” ■A transcript of oral arguments to the Supreme Court in Hall v. Florida can be accessed here. The amicus brief filed by APA can be read here. ISSUES NewArchived

For our empirical study on the use of Chevron deference in the federal courts of appeals, we utilized the following Codebook. This Codebook draws substantially from the codebook appended to William Eskridge and Lauren Baer’s pathbreaking study of administrative law’s deference doctrines at the Supreme Court. Our research assistants and we followed the instructions below when coding judicial decisions. To address questions as they arose and to ensure consistent coding, we maintained close contact with each other and our research assistants throughout the project and clarified the Codebook to address additional issues. Further details concerning our methodology (and its limitations) are further detailed elsewhere.

The primary goal of the Clean Water Act is “to restore and maintain the chemical, physical and biological integrity of the nation's waterways.” One measure of that integrity is the dissolved oxygen content of water, which can be dangerously altered by the structure of dams and hydroelectric plants. However, two federal courts of appeals have held that Congress did not intend to regulate the destructive discharges of dams under the Clean Water Act. This paper briefly describes the relationship between dissolved oxygen and water quality and explains how dams and hydroelectric facilities pollute the surrounding waters. The paper concludes that the erroneous decisions of the two circuit courts are serious threats to the economic viability and biological integrity of the nation's waterways. Actions by both Congress and the Environmental Protection Agency are suggested.

Is the Intellectual Functioning Component of AAIDD's 12th Manual Satisficing?

'Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia

Originalism and Stare Decisis in the Lower Courts

This Article explores an ongoing revolution in the mandamus jurisprudence of the U.S. Court of Appeals for the Federal Circuit, the court of appeals with nearly exclusive jurisdiction over patent cases. Before December 2008, the Federal Circuit had never used the interlocutory writ of mandamus to order a district court to transfer a case to a more convenient forum, denying each one of the twenty-two petitions it had decided on that issue. Since that time, however, the court has overturned eleven different venue decisions on mandamus. Remarkably, ten of those eleven cases have come from the same district court, the U.S. District Court for the Eastern District of Texas. This use of mandamus to repeatedly overturn discretionary, non-appealable rulings of one district court is unprecedented in any federal court of appeals. What makes the Federal Circuit’s cases particularly notable is that the court, not long ago, would grant mandamus only on issues governed by Federal Circuit patent law. Because transfer of venue is a non-patent issue controlled by regional circuit law, the recent cases plainly would not warrant mandamus under the court’s prior, narrower standard. The court’s focus on the Eastern District of Texas is also interesting because of the popular view that the Eastern District is biased in favor of patent holders and denies transfer motions with impunity. This is the first article to analyze the Federal Circuit’s retreat from its original, restrained view of mandamus. It begins by considering why the Federal Circuit initially believed it could grant mandamus on patent issues only, a question previously ignored by the literature. The Article then explores why, in its recent cases, the court has abandoned the view that Federal Circuit mandamus should be limited to issues of patent law. Surprisingly, the Federal Circuit has never explained its reasoning. The Article fills this analytical void and develops a doctrinal, theoretical, and pragmatic rationale for Federal Circuit mandamus on non-patent issues. The Article also offers possible explanations for the Federal Circuit’s fixation on the Eastern District of Texas and proposes a new analytical framework for Federal Circuit mandamus—a framework that might emerge if the court were to critically examine its mandamus power.

This manuscript examines how federal appeals courts respond to precedent, in this case, Central Hudson Gas & Electric Corporation v. Public Service Commission. This account includes a comprehensive theory that examines attitudinal factors that relate to Central Hudson, specific relevant legal factors that relate to the case, as well as strategic considerations. We additionally argue that federal appeals courts may reasonably ignore Central Hudson in certain specific instances (most notably when other highly relevant cases are available for lower federal court judges to use). Our results show partial support for several portions of our theory, including a lower propensity for federal appeals courts to positively treat precedent when ideological distance is high. We also find support for one of our factual-based hypotheses (regarding cases that involve drugs and attorney advertising, where other U.S. Supreme Court precedents are readily available for appeals court judges to use).