Nancy C. Staudt

If Major Wars Affect (Judicial) Fiscal Policy, How & Why?

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.

The Hidden Costs of the Progressivity Debate

In this Article, I argue that.by reaching the agreement that the poor should have no tax liability, the contest over progressivity has centered improperly on the rights and responsibilities of relatively wealthy citizens. The wealthy are widely perceived to have valuable property that, if shared with society, will enable the smooth operation of the democratic state. At the same time, the wealthy are perceived to have liberty interests, which if violated, could lead to the ruin of the domestic economy.Although the debate over progressivity has lasted for more than a century, traditional tax theorists have limited their discussion to the negative rights of the poor and have never explored fully any positive rights the poor might have. Moreover, theorists have ignored completely any responsibilities the poor might have with regard to the state. Traditional tax theorists, for example, have never investigated in any detail the question of whether poor individuals have a right to basic needs and economic security simply because of their status as citizens. Theorists also have failed to explore the idea that the poor might have a social duty to contribute their talents and energies to the greater social good despite their lack of income. Indeed, the poor are viewed as having nothing of value to contribute to society. Many political, moral, and economic theorists have argued, however, that access to rights as well as fulfillment of duties are necessary components of ones full membership in a community. Accordingly, I argue that by drawing lines and divisions between taxpayers and non-taxpayers, traditional tax theorists have enabled relatively wealthy individuals to participate in society as full citizens. At the same time, the lines have virtually bound the poor to a subordinate status.