The Ideological Component of Judging in the Taxation Context
Nancy C. Staudt
USC Gould School of Law
University of Southern California
Peter J. Wiedenbeck
Washington University in Saint Louis - School of Law
Washington University Law Review, Forthcoming
Washington U. School of Law Working Paper No. 07-04-02
Northwestern Public Law Research Paper No. 07-14
Northwestern Law & Econ Research Paper No. 07-01
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.
Keywords: courts, tax, empirical
JEL Classification: K34, H20, M41,G38Accepted Paper Series
Date posted: April 8, 2007
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