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Abstract:
In this article, Professors Staudt, Lindstaedt, and O'Connor undertake a comprehensive study of congressional responses to Supreme Court cases and make a surprising finding: Overrides, although the sole focus in the extant literature, account for just a small portion of the legislative activity in response to the Court. In fact, Congress is just as likely to support and affirm judicial decision-making through the codification of a case outcome as they are to undermine a decision through an override. To investigate fully the nature of congressional oversight of Supreme Court decision-making, the authors undertake both qualitative and quantitative analyses of all the different types of legislative review in the economic context. In doing this the authors make a series of important and robust findings that challenge and build on the Court-Congress literature. They identify the legal, political, and economic factors that explain why legislators take notice of Supreme Court cases, and are able to predict the factors that are correlated with congressional activity.

courts, congress, tax, economics, empirical

Abstract:
Positive analyses aimed at answering the question of why judges interpret statutes the way they do abound. Some authors suggest the primary determinant centers on the political ideology of the judges, others argue that jurists interpret statutes in a strategic fashion vis-a-vis the relevant actors in the playing field, and still others maintain that statutory interpretation has less to do with policy maximization than with principle maximization. To us, the most interesting features of the non-normative literature on statutory interpretation lie not on the distinctive conclusions generated, but rather on the commonalities. First, many of the relevant studies focus on civil rights legislation. This holds true regardless of whether the author is a legal academic or a social scientist, whether the research is primarily quantitative or qualitative, or whether the theoretical grounding is in psychology, sociology, political science, or economics. Second, almost all studies, especially those of the large-n quantitative variety, explore the outcomes reached by jurists and not the rationale or justification they invoke. These are not criticisms of the extant literature; in fact, we believe that by investigating outcomes reached in civil rights cases, authors have revealed a great deal about the "judicial mind." At the same time, we believe just as firmly that if we are to understand fully the determinants of statutory interpretation, then the emphases on civil rights and outcomes impose serious limitations. Accordingly, we have a devised a project that aspires to address these concerns by (1) exploring Supreme Court tax opinions, a large body of case law that, despite its importance, has received virtually no systematic attention, and (2) taking into account both outcomes and rationales. In this Article, we do not present results (other than the most preliminary findings) given that our data collection is still underway. Rather, we make the case for moving beyond the arena of civil rights, and for incorporating rationales into models of statutory interpretation.

Tax, Law, Courts Politics, Empirical

Abstract:
This article investigates judicial standing decisions in the context of highly controversial lawsuits: taxpayers challenging the constitutionality of government expenditures (for example, congressional expenditures on war efforts, welfare programs, affirmative action policies, and abortion). Upon reviewing roughly 700 cases, from every level of the judicial hierarchy, this study challenges the existing scholarly view on standing - that judges make decisions in a purely political manner and without any regard for existing legal precedent. Relying on statistical models, this article uncovers a pattern of decision making that is highly correlated with two factors often ignored in the existing literature: the judge's position in the judicial chain of command and the coherence of the legal doctrine at play. Lower level courts, those subject to extensive oversight and monitoring by higher level courts, tend to be rule-bound and consistent but as the controversy moves up the judicial decision making ladder, courts pay less and less attention to precedent-deciding cases in a manner that conforms more to the judges' own personal and political preferences. These findings are robust and thus have implications for the proposed standing reforms set forth by various scholars over the course of the last twenty-five years. Accordingly, the final part of the article assesses two well-known standing proposals against the empirical results of this study and finds that they may not achieve the authors' goal of taming a judge's inclination to purse politics in standing controversies. This quantitative piece is a companion to a qualitative article entitled, "Taxpayers in Court: A Systematic Study of a (Misunderstood) Standing Doctrine," 52 Emory Law Journal 771 (2003).

Abstract:
The legal literature reflects a widespread belief that taxpayers do not have standing to challenge government spending decisions in federal court - this study dispels that belief. Through an investigation of every published judicial opinion addressing a taxpayer's challenge to government spending between the years 1865 and 2002, this article demonstrates that taxpayer standing is alive and well in federal court; indeed, data indicate that federal courts have granted standing to the majority of taxpayers in the last twenty-five years. This article first describes the types of controversies that taxpayers bring into court and then investigates the legal rules that govern the court's decision to grant or deny standing. The study reveals a surprising finding: federal courts grant standing to federal, state, and municipal taxpayers to challenge government expenditures under the federal constitution. While the courts have devised a clear standard for determining when federal taxpayers have the right to bring a lawsuit, the same courts have failed to create a clear and coherent standard for state and municipal taxpayers seeking to challenge government spending decisions on constitutional grounds. A qualitative analysis of the cases, however, indicates that both the clear and the ambiguous standing rules produce illogical results in certain circumstances. Accordingly, the study ends with a normative discussion of the issues and problems that arise when we allow taxpayers to bring lawsuits in federal court, thereby enabling the judiciary to question the legislative decisions regarding the allocation of public revenue. This article raises questions about the judicial decision making process and federal courts' adherence to legal rules. I investigate these subsidiary questions using statistics to analyze the data in an article entitled, "Modeling Standing," NYU Law Review (forthcoming 2004).

Abstract:
Theories of statutory interpretation abound. Scholars, judges and commentators have long puzzled over the best method to locate the meaning of a statute and to this end have proposed a range of approaches that rely on various forms of evidence, including statutory text, legislative intent, agency interpretations, cultural norms, and judicial precedent. These theories do not merely offer competing modes of analysis: they also highlight competition among and between federal actors for control over the law-making process.

In this Symposium essay, we not defend an interpretive approach; many others have done that. Nor do we seek to develop a novel understanding of statutory interpretation; others have done that as well. Rather our goal is something more modest: to provide a descriptive mapping of statutory interpretation in the business context - specifically, in disputes over the meaning of the Internal Revenue Code. To that end, we analyze every tax ase decided by the Supreme Court since Congress adopted the modern tax law, with an eye for identifying the various rationales deployed by the justices, as well as the some commonly held-beliefs about trends in statutory interpretation over time.

courts, statutory interpretation, tax, empirical

Abstract:
This essay introduces a collection of interdisciplinary articles, all of which use empirical methodology to investigate taxation issues. The articles are found in Volume 13 of the Washington University Journal of Law & Policy and include contributions by six Law Professors (David Shizer, Lee Anne Fennell, Bradley W. Joondeph, Daniel M. Schneider, Peter Wiedenbeck, and Nancy Staudt), 4 Political Scientists (John T. Scholz, Robert M. Howard, David C. Nixon, and Lee Epstein), an Economist (William M. Gentry), and an Anthropologist (Christopher C. Fennell).

Tax, Law, Courts, Politics, Empirical

Abstract:
This article investigates the widespread argument for tax-based welfare reform - a policy reform that calls for the integration of important anti-poverty programs into a single, unified plan. Congress has adopted more than eighty different programs in an effort to assist poor individuals but often these programs work at cross purposes leading to reduced benefits, excessive costs, and greater difficulty in detected and assigning blame for faulty programs. Policy analysts make a strong argument that merging the policies into one coherent program would assure a more fair, efficient, and effective system than the current fragmented approach to distributing government subsidies.

Implicit, but entirely unstated, in the case for integration is an argument for awarding institutional monopolies. Under the current scheme, many different congressional committees and bureaucracies work on the poverty problem; the call for integration would leave the task to the tax-writing committees in Congress and to a single agency, the Internal Revenue Service. This article examines the political roadblocks that exist to this type of policy reform as well as the normative drawbacks of giving small groups of government actors complete control over major federal programs.

welfare, tax, decision-making

Abstract:
This paper seeks to identify and explain the effects of major wars on U.S. Supreme Court decision-making in the context of taxation. At first cut, one might ask why we should even expect to observe a correlation between military activities and judicial fiscal policy. After all, the justices have no authority whatsoever to adopt funding laws intended to relieve the budgetary pressures that tend to emerge in times international crisis. The Court, however, is able to contribute to the wartime revenue-raising efforts indirectly by adopting a pro-government stance in the cases it decides in wartime periods. As the probability of a government win increases, the expected revenue to the federal fisc also increases.

Relying on Supreme Court tax decisions issued between the years 1909 and 2000, this paper identifies a strong and positive correlation between major wartime activity and the probability that the government will prevail. This pro-government bias appears to operate through the judicial belief that Congress and the President are better suited to address national emergencies. This perceived imbalance of expertise, however, does not lead the Court to adopt a strategy of total deference, but rather a restricted form that involves accommodation only on issues that Congress and the President have signaled are important to the on-going war activities. These findings are robust and rule out the possibility that the Court is motivated by short-term irrational exuberance for federal policymakers associated with the so-called rally-effect that emerges when Americans feel threatened by forces abroad.

tax policy, fiscal policy, war, Supreme Court, deference, emergency, Supreme Court bias, wartime economics, taxation, history of taxation

Abstract:
One of the most enduring divides that scholars have uncovered between decision making in different areas of the law is the role of politics, whether in the form of partisanship or ideology. Study after study confirms a strong correlation between judges' political preferences and their behavior in civil rights/liberties-type cases, but researchers have only rarely identified an association between politics and decisions in economics cases. Some argue that the apolitical nature of decision making in the business and finance contexts is due to the fact that judges simply do not have political preferences in these areas, or if they do, other factors work to neutralize them.

In our view, the existing literature highlights a curious puzzle: Why do judges appear to stand above politics in the areas of the law that are rife with conflict and controversy in the other two branches of government? Lawmaking in the context of taxation, bankruptcy, securities, antitrust, corporate law, to name just a few examples, is highly political in both the legislative and executive branches, as many empirical scholars have documented. For this reason, we seriously question the claim that judges are unique in that they have no political or ideological preferences when it comes to business and finance. Our conjecture is that the null findings in the literature are due to the technical difficulties associated with uncovering politics in large-N studies addressing economics decision-making rather than to a lack of judicial interest in these issues. But this is precisely the question we investigate here.

courts, tax, empirical

Abstract:
Poll taxes are unconstitutional and yet Americans continue to link political rights to economic status. When taxpayers claim, "We pay taxes and therefore should decide how public monies are spent," they claim a privileged position in society based on their monetary contributions to the state and federal fiscal position that, by implication, nontaxpaying Americans should not have. Not only do taxpayers claim they deserve special political privileges, but the law itself continues to couple political rights to taxpaying status in ways that legal scholars have largely left unexplored. This article examines a range of political benefits tied to the payment of federal taxes and concludes that various Tax Code provisions and judicial doctrines operate as a fee for political expression. In particular, the presidential election check-off, various tax benefits, and the taxpayer standing doctrine devised (and later revised) by the Supreme Court in Flast v. Cohen all function as hidden poll taxes in violation of current constitutional principles. This article investigates two legal reforms that would remedy the perceived constitutional infringements: Congress and the Court could repeal and overturn laws that award political benefits based on taxpaying status, thereby denying all individuals the benefits, alternatively, lawmakers could retain the existing legal benefits but link them to citizenship status rather than to taxpaying status. Practical and normative considerations will lead to preferring one approach over the other in each context, accordingly, this article explores the relevant factors and reaches tentative conclusions as to which approach should be pursued.