Nancy Staudt


Modeling Standing

Nancy Staudt

Standing doctrine serves the important function of ensuring that plaintiffs are the proper parties to bring suits in federal courts, but it has long been the subject of criticism. Scholars have labeled it an incoherent and unstable area of the law and declared that standing decisions are primarily influenced by the political ideologies of judges. Several existing empirical studies have analyzed standing in the federal courts and supported the claim that standing decisions are rooted primarily in individual politics and not legal doctrine. Spurred by this widespread criticism as well as the empirical support, several well-known scholars have proposed reforms of the standing doctrine in an effort to hinder political decisionmaking or at least to bring more candor to the decisionmaking process.

In this Article, Professor Nancy Staudt undertakes rigorous empirical analyses to test the underlying claim that all standing decisions are politically motivated. Improving upon the prior standing studies that have a range of limitations and possible flaws, Professor Staudt’s study focuses on standing decisions in one area of the law-taxpayer challenges to government spending-and analyzes the results up and down the federal judicial hierarchy. Using statistical models, she finds that judges render law-abiding and predictable decisions where clear precedent and effective judicial oversight exist; where these variables are absent, however, standing decisions are more likely to be based on judges’ personal ideologies. Professor Staudt then applies her findings to the proposed standing reforms and determines that they address some of the problems in the standing doctrine but ignore the importance of the judicial hierarchy. The reform proposals, she argues, are destined to fail unless they consider institutional factors such as the level of oversight and monitoring in the judicial hierarchy.

Judicial Decisions as Legislation: Congressional Oversight of Supreme Court Tax Cases, 1954–2005

Nancy Staudt, René Lindstädt, Jason O’Connor

This Article offers a new understanding of the dynamic between the Supreme Court and Congress. It responds to an important literature that for several decades has misunderstood interbranch relations as continually fraught with antagonism and distrust. This unfriendly dynamic, many have argued, is evidenced by repeated congressional overrides of Supreme Court cases. While this claim is true in some circumstances, it ignores the friendly relations that exist between these two branches of government—relations that may be far more typical than scholars suspect.

This Article undertakes a comprehensive study of congressional responses to Supreme Court tax cases and makes a surprising finding: Overrides, although the main focus of the extant literature, account for just a small portion of the legislative activity responding to the Court. In fact, Congress is nearly as likely to support and affirm judicial decisionmaking through the codification of a case outcome as it is to reverse a decision through a legislative override. To investigate fully the nature of congressional oversight of Supreme Court decisionmaking, this Article undertakes both qualitative and quantitative analyses of different types of legislative review of Supreme Court decisions—examining codifications and citations, as well as overrides, in legislative debates, committees, and hearings. The result is a series of important and robust findings that challenge and build on the Court-Congress literature, identifying the legal, political, and economic factors that explain how and why legislators take notice of Supreme Court cases.

The study reveals a complex and nuanced interbranch dynamic and shows that the Justices themselves affect the legislative agenda to a greater extent than previously understood. This result challenges scholars who have questioned whether the Supreme Court should have jurisdiction over complex issues, such as those in the economic context, in which the Justices may lack sufficient training. This Article argues that scholars have little need to worry about Court decisionmaking in these areas: Not only do legislators routinely review the Court’s decisions, but they also frequently confirm the outcomes as valuable contributions to national policymaking via the codification process.

Corporate Shams

Joshua D. Blank, Nancy Staudt

Many people—perhaps most—want to make money and lower their taxes, but few want to unabashedly break the law. These twin desires have led to a range of strategies, such as the use of “paper corporations” and offshore tax havens, that produce sizable profits with minimal costs. The most successful and ingenious plans do not involve shady deals with corrupt third parties, but strictly adhere to the letter of the law. Yet the technically legal nature of the schemes has not deterred government lawyers from challenging them in court as “nothing more than good old-fashioned fraud.”

In this Article, we focus on government challenges to corporate financial plans—often labeled “corporate shams”—in an effort to understand how and why courts draw the line between legal and fraudulent behavior. The scholars and commentators who have investigated this question nearly all agree: Judicial decision making in this area of the law is erratic and unpredictable. We build on the extant literature with the help of a new, large dataset, and uncover important and heretofore unobserved trends. We find that courts have not produced a confusing morass of outcomes (as some have argued), but instead have generated more than a century of opinions that collectively highlight the point at which ostensibly legal planning shades into abuse and fraud. We then show how both government and corporate attorneys can exploit our empirical results and explore how these results bolster many of the normative views set forth by the scholarly and policymaking communities.