Saturday, December 17, 2011
The Harvard Law Review has published a review of the new book by Tax Prof Nancy Staudt (USC), The Judicial Power of the Purse: How Courts Fund National Defense in Times of Crisis (University of Chicago Press. 2011), 125 Harv. L. Rev. 378 (2011):
Congressional declarations of war, troop deployments, and revenue-raising laws are familiar legislative and executive responses to foreign policy crises. According to this innovative study of judicial decisionmaking, they also function as cues to Supreme Court Justices, who strategically adjust federal budgetary constraints in pursuit of the optimal level of national defense consumption. Investigating thousands of Supreme Court and lower federal court opinions, courtroom filings, and law clerk memoranda, Professor Nancy Staudt exposes the implicit judicial power of the purse, presenting compelling evidence that in fiscal and tax matters between the government and private parties, Justices support the government when cues from the elected branches indicate that costly military activities are necessary for national security but side with private parties when credible cues signal that military activities are excessive. Staudt’s thesis dynamically expands the scholarly understanding of the macro-level factors that influence judicial decisionmaking. This book challenges conventional perceptions of federal power dynamics and revives the debate over the extent to which considerations of national interests should sway judicial preferences.