Modeling Standing

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).