Judicial decisions as legislation: Congressional oversight of Supreme Court tax cases, 1954-2005

New York University Law Review

Volumn 82, Issue 5, 2007, Pages 1340-1402

  Staudt, Nancy C ^a   Lindstädt, René ^b   O'Connor, Jason ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

^b STONY BROOK UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 36549085067     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (412)

1. See, e.g., Charles Gardner Geyh & Emily Field Van Tassel, The Independence of the Judicial Branch in the New Republic, 74 CHI.-KENT L. REV. 31, 46-47 (1998) (noting that Constitutional Convention viewed three branches of government as coequal actors);
2. Peter L. Strauss, The President and Choices Not To Enforce, LAW & CONTEMP. PROBS., Winter-Spring 2000, at 107, 119 (arguing that subordination of one branch by another is difficult to justify in government of coequal branches); see also U.S. CONST, arts. I, II, III (creating three distinct branches of federal government).
3. E.g., LEE EPSTEIN& JACK KNIGHT. THE CHOICES JUSTICES MAKE 13-15 (1998) (modeling Court-Congress interaction in manner that requires Justices to account for congressional preferences or suffer an override);
4. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 335-53 (1991) (exploring extensive number of congressional overrides and noting that Court must attend to congressional preferences in order to avoid overrides).
5. A vast literature examines the congressional inclination to overrule Supreme Court cases. E.g., JEB BARNES, OVERRULED?: LEGISLATIVE OVERRIDES, PLURALISM, AND CONTEMPORARY COURT-CONGRESS RELATIONS (2004); CONGRESS CONFRONTS THE COURT: THE STRUGGLE FOR LEGITIMACY AND AUTHORITY IN LAWMAKING (Colton C Campbell & John F. Stack, Jr., eds., 2001);
6. ROBERT A. KATZMANN, COURTS AND CONGRESS (1997);
7. Eskridge, supra note 2; Joseph Ignagni & James Meernik, Explaining Congressional Attempts To Reverse Supreme Court Decisions, 47 POL. RES. Q. 353 (1994);
8. Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729 (1991);
9. Pablo T. Spiller & Emerson H. Tiller, Invitations To Override: Congressional Reversals of Supreme Court Decisions, 16 INT'L REV. L. & ECON. 503 (1996).
10. But see GEORGE 1. LOVELL, LEGIS-LATIVE DEFERRALS: STATUTORY AMBIGUITY, JUDICIAL POWER, AND AMERICAN DEMOCRACY (2003) (arguing that Congress intentionally adopts ambiguous statutes in order to defer to Supreme Court on difficult issues).
11. See infra Part IV.A.2.
12. See infra Part IV.A.4.
13. See infra notes 40-44 and accompanying text.
14. See infra Part LC.
15. See supra note 3 (citing examples of existing literature on congressional overrides of Supreme Court decisions).
16. To take just one example, theorists hypothesize that when Congress is ideologically distant from the Court, legislators are more likely to overturn a judicial decision. Virginia A. Hettinger & Christopher Zorn, Explaining the Incidence and Timing of Congressional Responses to the U.S. Supreme Court, 30 LEGIS. STUD. Q. 5, 7-8 (2005). Although this claim may be true, it takes on a different meaning if Congress also codifies Court decisions in identical political circumstances. The meaning of scholarly findings, in short, may need reconsideration in light of the full range of congressional responses to Court decisions.
17. See, e.g., Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. REV. 587, 609 (1983) ("[M]ost Supreme Court decisions never come to the attention of Congress."). But see Eskridge, supra note 2, at 336 (noting that Congress monitors Supreme Court with surprising regularity).
18. See infra Part I.C.
19. See infra Part II.A.
20. See infra Part IV.B.
21. Scholars have a range of views on the judicial role in interpreting statutes, but few argue that judges should completely ignore the preferences or intent of Congress. See, e.g., Martin H. Redish & Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 TUL. L. REV. 803, 805 (1994) ("[According to originalists, the] judge's role as interpreter is limited to deciphering .. . commands [of Congress] and applying them to particular cases.");
22. William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1556-60 (1998) (book review) (arguing that judges should exercise humility in interpreting statutes and should act in part as agent of Congress);
23. Cass R. Sunstein, Justice Scalia's Democratic Formalism, 107 YALE L.J. 529. 532 (1997) (book review) (stating that goal of any system of interpretation is to constrain judicial discretion).
24. See, e.g..Kirk J. Stark, The Unfulfilled Tax Legacy of Justice Robert H. Jackson. 54 TAX L. REV. 171, 173 (2001) ("Tax lawyers have derided the Supreme Court, complaining that the Court 'hates tax cases' and generally bungles the cases it does hear."
25. (quoting Erwin N. Griswold, As the Tax Law Going to Seed?, 11 AM. J. TAX POL'Y 1.7 (1994)));
26. Joel Newman, The Story of Welch: The Use (and Misuse) of the "Ordinary and Necessary" Test for Deducting Business Expenses, in TAX STORIES: AN IN-DEPTH LOOK AT TEN LEADING FEDERAL INCOME TAX CASES 155, 181 (Paul L. Caron ed., 2003) (arguing that Supreme Court tax cases are needlessly confusing);
27. see also Gary W. Carter, The Commissioner's Nonacquiescence: A Case for a National Court of Tax Appeals, 59 TEMP. L.Q. 879, 914-16 (1986) (arguing that Congress should authorize National Court of Tax Appeals to take jurisdiction over tax cases);
28. Charles L.B. Lowndes, Federal Taxation and the Supreme Court, 1960 SUP. CT. REV. 222, 222 ("It is time to rescue the Supreme Court from federal taxation; it is time to rescue federal taxation from the Supreme Court.").
29. Of course, Congress may codify a Court outcome for a number of reasons besides the competence of the decisionmaker, such as politics or policy preferences. We do not mean to suggest that legal experts will necessarily agree with the outcome even if legislators have sanctioned it through codification.
30. See, e.g., James Meernik & Joseph Ignagni, Congressional Attacks on Supreme Court Rulings Involving Unconstitutional State Laws, 48 POL. RES. Q. 43, 45-46 (1995) (examining all cases in which Supreme Court struck down state legislation during Warren, Burger, and early Rehnquist Court years);
31. Harry P. Stumpf, Congressional Response to Supreme Court Rulings: The Interaction of Law and Politics, 14 J. PUB. L. 377, 383-91 (1965) (identifying different issue areas but aggregating cases for purposes of analysis).
32. While scholars acknowledge the role of many factors in congressional policymaking, they tend to focus on ideology in the civil rights context and interest groups in the economic context. See R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 193-223 (1990) (exploring roles of economic factors and interest groups in making of tax policy); Eskridge, supra note 2, at 372-97 (investigating political dynamic that exists in civil rights context between Supreme Court, Congress, and President);
33. Andrew D. Martin, Congressional Decision Making and the Separation of Powers, 95 AM. POL. SCT. REV. 361, 366, 376 (2001) (finding that legislators vote both sincerely and strategically in order to achieve ideological goals in context of civil rights);
34. Daniel Shaviro, Beyond Public Choice and Public Interest: A Study of the Legislative Process as Illustrated by Tax Legislation in the 1980s, 139 U. PA. L. REV. 1, 55 (1990) ("Observers have consistently agreed that public participation in the tax legislative process is heavily skewed in favor of business groups that seek tax favors for themselves and that, through 'Schattschneiderian' logrolling, almost never oppose favors for each other."), A similar conclusion may be drawn with respect to
35. judicial decisions in the context of civil rights cases and economic cases. See Nancy C. Staudt, Lee Epstein & Peter Wiedenbeck, The Ideological Component of Judging in the Taxation Context, 85 WASH. U. L. REV. (forthcoming 2007) ("Study after study confirms a strong correlation between judges' political preferences and their behavior in civil rights and liberties cases, but researchers have only rarely identified an association between politics and decisions in economic cases.").
36. See generally DAVID C KING, TURF WARS: How CONGRESSIONAL COMMITTEES CLAIM JURISDICTION (1997) (exploring how power and jurisdiction are allocated in Congress's committee system);
37. Roger H. Davidson, Walter J. Oleszek & Thomas Kephart, One Bill, Many Committees: Multiple Referrals in the U.S. House of Representatives. 13 LEGIS. STUD. Q. 3, 22 tbl.7 (1988) (investigating fate of bills referred to multiple committees).
38. Mark C. Miller, Courts, Agencies, and Congressional Committees: A Neo-Institutional Perspective, 55 REV. POL. 471, 478 tbl.1, 479-82 (1993).
39. Id. at 484.
40. Beth M. Henschen & Edward I. Sidlow, The Supreme Court and the Congressional Agenda-Setting Process, 5 J.L. & POL. 685 (1989);
41. see also Beth Henschen, Statutory Interpretations of the Supreme Court: Congressional Response, 11 AM. POL. Q. 441 (1983) (exploring congressional response to Supreme Court labor and antitrust decisions).
42. Henschen & Sidlow, supra note 22, at 719-24 (noting that presidential agendas, interest group lobbying, individual legislators' agendas, and Supreme Court invitations to intercede may all lead to committee response to Supreme Court decisions); Henschen, supra note 22, at 447-54 (offering various hypotheses on what attracts legislative attention to labor and antitrust cases, including unanimity of decision, ideological conflict within legislature, and activity of interest groups, but not conducting quantitative analysis on differences in response).
43. Joseph Ignagni, James Meernick & Kimi Lynn King, Statutory Construction and Congressional Response, 26 AM. POL. Q. 459, 470 (1998).
44. See DAVID J. TINSLEY, COMMITTEE AND SUBCOMMITTEE ASSIGNMENTS, S. Pub. No. 108-5, at 18 (2003).
45. Eskridge, supra note 2, at 391-97; William N. Eskridge, Jr., Reneging on History?: Playing the Court/Congress/President Civil Rights Game, 79 CAL. L. REV. 613 (1991).
46. See Eskridge, supra note 2, at 391-97 (testing theory with qualitative analysis of cases in three different eras); Eskridge, supra note 26, at 617-64 (same). Hettinger and Zorn investigate the public choice theories set forth by Eskridge-thus avoiding the problem of aggregation and at the same time offering a quantitative analysis. See Hettinger & Zorn, supra note 9 (studying congressional overrides of civil rights cases decided between 1967 and 1989). However, Hettinger and Zorn focus exclusively on congressional overrides and thus ignore other important ways that Congress oversees Supreme Court decisions.
47. See infra fig.2 and accompanying text (depicting significant number of tax cases on Supreme Court docket); see also Note, Congressional Reversal of Supreme Court Decisions: 1945-1957, 71 HARV. L. REV. 1324, 1324 n.3 (1957) (noting "rapid interplay" between Court and Congress in taxation context).
48. The Ways and Means Committee controls tax issues in the House: the Finance Committee controls taxation issues in the Senate. Nancy Staudt, Redundant Tax and Spending Programs, 100 NW. U. L. REV. 1197, 1211 (2006). The House and Senate Budget Committees, with jurisdiction over the national budget in their respective chambers, are also likely to be responsive to Supreme Court tax decisions. See infra Part II.A.1 (discussing role of these committees in legislative oversight and agenda setting).
49. See infra notes 31-34 and accompanying text.
50. The data in Figure 1 were computed from Harold J. Spaeth, The S. Sidney Ulmer Project: U.S. Supreme Court Databases, http://www.as.uky.edu/polisci/ ulmerproject/ sctdata.htm (ALLCOURT database, Dec. 9. 2004 release) (last visited July 9, 2007).
51. The data in Figure 2 is compiled from Spaeth, supra note 31 (ALLCOURT database, Oct. 14. 2004 release).
52. We plan to study Supreme Court decisionmaking more extensively in future articles. For preliminary studies of Supreme Court decisionmaking in the tax context, see Staudt, Epstein & Wiedenbeck, supra note 18 (analyzing factors that affect Supreme Court decisionmaking in taxation cases); Nancy C. Staudt, Agenda Setting in Supreme Court Tax Cases: Lessons from the Blackmun Papers, 52 BUFF. L. REV. 889 (2004) (examining factors that explain Supreme Court's decision to grant certiorari in large number of tax cases) [hereinafter Staudt, Agenda Setting];
53. Nancy C. Staudt, Lee Epstein, Peter Wiedenbeck, René Lindstädt & Ryan J. Vander Wielen, Judging Statutes: Interpretive Regimes, 38 LOY. L.A. L. REV. 1909 (2005) (examining rationales used by Court in deciding tax cases).
54. See, e.g., STEVEN S. SMITH & CHRISTOPHER J. DEERING, COMMITTEES IN CONGRESS 91,104 (2d ed. 1990) (identifying tax-writing committees as among most powerful committees in Congress).
55. We focused on this time period for two reasons. First, the basic structure of the tax code has remained relatively stable during this period. See generally W. ELLIOT BROWNLEE, Federal Taxation in America: A SHORT HISTORY 1-9 (2d ed. 2004) (reviewing history of tax regimes in United States and finding basic tax structure has remained unchanged since World War II). Second, the electronic databases made available through Westlaw and Lexis include in-depth documentation of congressional activities in the tax context going back to 1954, but coverage is erratic prior to that time. For our data collection process, we first searched for any Supreme Court case that mentioned taxation. We then reviewed each case produced by the search, retaining only those cases that involved an interpretation of a federal tax statute (for example, we excluded slate tax cases and cases that addressed non-statutory issues such as standing). Our unit of analysis is the case citation, and wc found 279 cases. If we use docket number as our unit of analysis, the figure increases to 554, as many cases are consolidated. We included only orally argued cases that resulted in a per curiam judgment or an opinion of the Court. To reproduce our search, go to the Supreme Court library on Lexis and use the following search terms: (federal w/s tax!) or (excise w/s tax!) or (estate w/s tax!) or (user w/5 fee) or (user w/s tax!) or (tax! w/s fraud) or (ire) or (i.r.c.) or (stamp w/s tax!) or (income w/ s tax!) or (internal w/s revenue) or (tax! w/s lien) or (tax! w/s code) or (tax! w/s evad!) or (tax! w/s evasion) or (corporate w/s tax!) or (payroll w/s tax!) or (employment w/s tax!) or (social w/s security) or (26 use) or (26 u.s.c.) or (tax! w/s refund) or (tax! w/s deficiency) or (unemployment w/s tax!) or (gift w/s tax!) or (fica w/s tax!) or (f.i.c.a. w/s tax!).
56. we accomplished this by a Lexis search of House and Senate documents using the following Lexis libraries: House and Senate Documents; Congressional Record and FullText Bills; Congressional Rules and Parliamentary Procedure; Committee Prints; Committee Reports; Congressional Record, All Congresses Combined; US-CIS Legislative Histories; CIS/Historical Index; and Tax Legislative Histories, Combined. While not all of the databases date back to 1954, the Tax Legislative History database does, and we were able to find all our documents in this database (although many were replicated in the other databases). We searched for any reference to a Supreme Court tax case (either by name or citation, checking for misspelled entries, or by subject matter) and included a congressional response in our database if the case was explicitly referenced by name or cite. We collected only the hearings, debates, reports, speeches, legislative proposals, and so forth that referred to the specific tax case, and excluded any documents that discussed the issue in the case but did not refer to a particular Court decision. Although this approach is underinclusive in the sense that it nearly guarantees that, we overlooked legislative responses to some Court decisions, it also assures that our database contains only the instances in which legislators intended to discuss and respond to the Supreme Court.
57. These Court-Congress interactions have emerged when taxpayers believe Congress has imposed an unconstitutional economic burden, such as the customs tax litigated in United States v. U.S. Shoe Corp., 523 U.S. 360 (1998), cited in STAFF OF J. COMM. ON TAXATION, 104TH CONG., PRESENT LAW AND BACKGROUND AND PRESENT LAW RELATING TO FUNDING MECHANISMS OF THE "E-RATE" TELECOMMUNICATIONS PROGRAM 12-13 (Comm. Print 1998). Quite often, however, the cases that stir activity involve narrow and technical tax issues. See, e.g., United States v. Fior D'ltalia, Inc., 536 U.S. 238 (2002) (involving proper method for assessing taxes on employee tips), cited in 148 CONG. REC. 12,630 (2002); Gitlitz v. Comm'r, 531 U.S. 206 (2001) (involving correct method for determining basis in S Corporation stock), cited in 147 CONG. REC. 14075 (2001) (statement of Rep. Shaw); O'Gilvie v. United States, 66 F.3d 1550 (10th Cir. 1995) (involving taxation exclusion governing punitive damages received in tort suits), aff'd, 519 U.S. 79 (1996), cited in STAFF OF J. COMM. ON TAXATION, 104TH CONG., DESCRIPTION OF CHAIRMAN'S MARK OF THE SMALL BUSINESS JOB PROTECTION ACT 61 n.11 (Comm. Print 1996). All these issues involve statutes adopted by Congress, interpreted by the Supreme Court (or, in the O'Gilvie case, by a circuit court and affirmed by the Supreme Court), and then reconsidered in legislative hearings, debates, or reports.
58. Congress established the Joint Committee on Taxation under the Revenue Act of 1926, Pub. L. No. 69-20, § 1203, 44 Stat. 9, 127-28 (codified as amended at I.R.C. §§ 8001-05, 8021-23). Ten legislators sit on the Committee: five members from the Senate Committee on Finance (three majority and two minority), and five members from the House Committee on Ways and Means (three majority and two minority). I.R.C. S 8002 (2000). The Committee's statutorily prescribed duties include investigating and reporting on (1) the operation and effects of internal revenue taxes and the administration of such taxes, and (2) measures and methods for the simplification of such taxes. § 8022.
59. These numbers sum to greater than 54% because several of the cases were subject to multiple responses. In fact, for some cases legislators proposed both a codification and an override. For a discussion of the substance of legislative oversight, see infra Part IV.
60. 485 U.S. 212 (1988).
61. 138 CONO. REC. 28,738, 28,738-39 (1992) (statement of Sen. Dole).
62. See id. (describing potentially "devastating" consequences for farmers if Arkansas Best is given broad reading).
63. 461 U.S. 574, 612-23 (1983) (Rehnquisl, J., dissenting).
64. See, e.g., 132 CONG. REC. 22,795, 22,798 (1986) (statement of Sen. Biden) (citing Rehnquist's dissent in Bob Jones University as "a disturbing example of his insensitivity" during debate on Rehnquist's nomination for Chief Justice).
65. Hettinger & Zorn, supra note 9, at 9-23 (conducting empirical analysis of congres-sional overrides in civil rights context).
66. Later in the Article, .see infra Part IV, we explore the substance of the legislative oversight-ranging from simply referring to the case in floor debates and hearings to attempting to impact the law substantively through codifications or overrides-and the type of legal reform that emerges in response to the case outcome.
67. See, e.g., ARNOLD, supra note 18 (investigating factors that influence legislative agenda); JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES (2d ed. 1995) (same);
68. George C Edwards III & B. Dan Wood, Who Influences Whom?: The President, Congress, and the Media, 93 AM. POL. SCT. REV. 327 (1999) (investigating impact of President on legislative agenda).
69. See supranote 47 (citing sources exploring congressional agenda setting generally). Various scholars interested in the oversight process, however, have offered specific hypotheses as to why Supreme Court decisions become salient in the Capitol. See, e.g., Henschen & Sidlow, supranote 22, at 719-21 (exploring role of President, interest groups, and media in placing Supreme Court cases on legislative agenda); Ignagni et al., supranote 24, at 465-70 (hypothesizing that political actors, ideological differences between branches of government, public opinion, and interest groups increase salience of Supreme Court decisions in congressional debates); Michael E. Solimine & James L. Walker. The Next Word: Congressional Response to Supreme Conn Statutory Decisions. 65 TEMP. L. REV. 425, 444 tbl.1 (1992) (hypothesizing that case-related factors such as unanimous decisions and modes of statutory analysis influence legislative action).
70. See KINGDON, supra note 47, at 38-40 (discussing legislative incentives and noting that "[publicity is essential" and that members of Congress try "to carve out a part of the policy turf and become a person to be reckoned with in that area"); see also Jack L. Walker, Setting the Agenda in the U.S. Senate: A Theory of Problem Selection, 7 BRIT. J. POL. SCT. 423, 430-32 (1977) (discussing factors that influence agenda setting).
71. Given that tax lawmaking impacts taxpayers across the nation, nearly all legislators-regardless of committee assignment-will have incentives to comment on Supreme Court tax cases when the Court's outcome has a notable impact on their constituents. But we theorize that members of the tax and budget committees will be far more likely to evaluate Supreme Court tax decisions than other members of Congress and will seek to make the issues salient even when they do not greatly affect their constituents.
72. See MICHAEL J. GRAETZ & DEBORAH H. SCHENK, FEDERAL INCOME TAXATION 58-59 (4th ed. 2002) (describing jurisdiction of House Ways and Means Committee, Senate Finance Committee, and Joint Committee on Taxation over tax legislation); Staudt, supra note 29. at 1206-07 (describing authority of House and Senate Budget Committees to revise taxation and spending levels to comport with budgetary goals).
73. GRAETZ & SCHENK, supra note 51, at 58-59.
74. See KING, supra note 19, at 1-9 (stating that committees fight to retain politically salient issues and to expand committee jurisdiction); KINGDON, supra note 47, at 38-39 (describing agenda setting as means for members of Congress to gain public's attention); Staudt, supra note 29, at 1214-16 (exploring importance of committee jurisdictions in political maneuvering and noting that legislators fight to protect jurisdictional borders).
75. The term "tax expenditure" is generally attributed to Stanley Surrey, who defined the concept in relation to "structural provisions" of the Internal Revenue Code. See STANLEY S. SURREY & PAUL R. MCDANIEL, TAX EXPENDITURES 3 (1985). A structural provision is an aspect of the Code necessary to implement a normal tax, such as the definition of net income. Id. A tax expenditure, by contrast, is a special preference that is designed to favor a particular firm, person, or industry, which departs from the normal income tax provisions. Id. Since these special preferences result in decreased tax revenues, they are a form of government spending. Id.
76. We use the term "pro-government outcome" to mean a case in which the Court held for the government, and "pro-taxpayer outcome" a case in which the Court held for the taxpayer.
77. For example, Newark Morning Ledger Co. v. United States, 507 U.S. 546 (1993), involved a newspaper that sought to deduct as depreciation the value of customer lists that it obtained in a merger. Id, at 549-50. The government objected, arguing that the taxpayer sought to deduct millions of dollars when Congress and the Treasury did not intend such a maneuver. See Brief for the United States at 9-11, Newark, 507 U.S. 546 (No. 91-1135), 1992 WL 541266. The Supreme Court found in favor of the newspaper, holding that such a deduction was allowable under § 167 of the Internal Revenue Code. Newark, 507 U.S. at 570.
78. In some cases, we were unable to identify the committee responsible for the report, and therefore have excluded some of the responses from this count.
79. In our statistical models in Part III, we do not include membership on the tax and budget committees as an independent variable used to explain why Congress comments on certain cases and not others. Excluding this independent variable from our analysis is necessary because we cannot use a variable to explain Congress's behavior unless it is present both when members of Congress act and when they do not act. But, of course, we cannot observe committee membership status when no comments were made. We do not have this problem with other variables, like media coverage and lobbying, that occur both when Congress responds to a case and when it does not respond.
80. See, e.g., Eskridge, supra note 2, at 361-63 (discussing importance of interest groups in bringing judicial decisions to Congress's attention); see also Bryan D. Jones, Frank R. Baumgartner & Jeffrey C. Talbert, The Destruction of Issue Monopolies in Congress, 87 Am. Pol. Sei. Rev. 657, 664-65 (1993) (noting that congressional committees tend to hold hearings that are favorable to interest groups they support).
81. Scholars interested in the Court-Congress dynamic have often looked to amicus briefs as a measure of interest group pressure on both the Court and Congress. See Hettinger & Zorn, supra note 9, at 12-13 (using number of amicus briefs as proxy for level of interest group pressure on Congress); Ignagni et al., supra note 24, at 469-70 (same); see also Gregory A. Caldeira & John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, 82 AM. POL. SCI. REV. 1109, 1109-11 (1988) (exploring influence of interest groups on Supreme Court certiorari decisions via amicus brief filings).
82. 451 U.S. 772 (1981).
83. Id. at 780-81.
84. Id. at 773-74 n.*. For other examples of cases that generated a large response by amici, see United States v. U.S. Shoe Corp., 523 U.S. 360, 370 (1998), where the question of the constitutionality of the Harbor Maintenance Tax generated twelve amicus briefs by corporate organizations on behalf of the taxpayer, id. at 362 n.*, and Newark Morning Ledger v. United States, 507 U.S. 546, 570 (1993), a case considering whether taxpayers could depreciate the value of newspaper customer lists and in which sixteen amicus briefs were filed with the Court, id. at 548 n.*.
85. 532 U.S. 822 (2001).
86. 532 U.S. 200 (2001).
87. United Dominion Industries, Inc., 532 U.S. at 824 n.*; Cleveland Indians Baseball, Co., 532 U.S. at 204 n.*. See Brief for the National Ass'n of Manufacturers and the Manufacturers Alliance/MAPI Inc. as Amici Curiae Supporting Petitioner, United Dominion Industries, Inc., 532 U.S. 822 (No. 00-157), 2001 WL 27578; Brief for the Major League Baseball Players Ass'n as Amicus Curiae Supporting Respondent, Cleveland Indians Baseball, Co., 532 U.S. 200 (No. 00-203), 2001 WL 41024.
88. A dichotomous variable, often referred to as a "dummy" variable, only takes on two values (e.g., amici either filed briefs or they did not), while a discrete variable can take on a finite number of values (e.g., one, two, or ten amicus briefs may be filed in a given case). For a useful discussion of these and other basic statistical concepts, see generally ALAN AGRESTI & BARBARA FINLAY, STATISTICAL METHODS FOR THE SOCIAL SCIENCES (3d ed. 1997).
89. See, e.g., KINGDON, supra note 47, at 57-61 (arguing that "media attention to an issue affects legislators' attention," though noting that effect may be less than anticipated); Frank R. Baumgartner et al., Media Attention and Congressional Agendas, in Do THE MEDIA GOVERN?: POLITICIANS, VOTERS, AND REPORTERS IN AMERICA 349, 350 (Shanto Iyengar & Richard Reeves eds., 1997) (finding that media attention and congressional attention are "interrelated").
90. Scholars have long argued that legislators are extremely attentive to constituent viewpoints due to the legislators' strong desire to be reelected, and empirical studies find that it is the media that shapes the views of the voters. See DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 13 (1974) (arguing that members of Congress are single-minded seekers of reelection);
91. Adam J. Berinsky & Donald R. Kinder, Making Sense of Issues Through Media Frames: Understanding the Kosovo Crisis, 68 J. POL. 640, 653-54 (2006) (arguing that presentation of information in media reports affects individual understanding and opinions of government actions);
92. see also KINGDON, supra note 47, at 57-61 (discussing role of media in setting congressional agenda but noting it may be less than expected);
93. Lee Epstein & Jeffrey A. Segal, Measuring Issue Salience, 44 AM. J. POL. Sci. 66, 72-81 (2000) (exploring media coverage as useful measure of issue salience for elite political actors).
94. See Neil M. Richards, The Supreme Court Justice and "Boring" Cases, 4 GREEN BAG 2D 401, 401-07 (2001) (citing evidence that many Justices find tax cases boring); Staudt, Agenda Setting, supra note 33. at 889-90. 890 n.4 (citing memorandum in Blackmun papers indicating that Justices view tax cases as "crud" with issues that "put law clerks to sleep").
95. We collected data on the media coverage in the New York Times, Wall Street Journal, Los Angeles Times, and Chicago Tribune within five days of the decision date. We focus on these four newspapers because they each serve large markets and their stories tend to be picked up by newspapers in smaller markets. Although we expect that newsworthy decisions often will appear in the pages of the newspapers within one day of the Court's decision, we allow for a five-day delay to ensure that we capture all the coverage.
96. 485 U.S. 505 (1988).
97. Stuart Taylor, Jr., Congress Can Tax Municipal Bonds, High Court Rules, N.Y. TIMES, Apr. 21, 1988, at A1.
98. Id.
99. Id.
100. 134 CONG. REC. S11672, S11672 (daily ed. Aug. 11, 1988) (statement of Sen. Roth).
101. See, e.g., 134 CONG. REC. 14,023, 14,023-24 (1988) (quoting Delaware resolution supporting constitutional amendment to reverse South Carolina v. Baker).
102. See, e.g., S. Con. Res. 18, 101st Cong., 135 CONG. REC. 3780, 3780 (1989) ("Resolved, by the Senate ... that it is the sense of Congress that Federal laws regarding the taxation of State and local government bonds should not be changed in order to increase Federal revenues.");
103. H.R. Con. Res, 42, 101st Cong., 135 CONO. REC. 14,571, 14,571 (1989) ("Resolved by the House of Representatives (the Senate concurring), That we hereby memorialize the Congress of the United States to take steps to safeguard the tax-free status of state and local government bonds. . . .").
104. 420 U.S. 141 (1975).
105. Id. at 144-50 (holding that IRS has authority under I.R.C. §§7601-02 to issue "John Doe" summons to banks or other depositories to discover identity of person whose bank transactions suggest liability for unpaid taxes).
106. Warren Weaver, Jr., High Court Grants I.R.S. Wide Access to Bank Files, N.Y. TIMES, Feb. 20, 1975, at Al.
107. E.g., H.R. REP. NO. 94-658, at 306, 311 (1975) (citing to Bisceglia case), as reprinted in 1976 U.S.CC.A.N. 2897, 3202, 3207.
108. See Tax Reform Act of 1976, Pub. L. No. 94-455, §1205, 90 Stat. 1520, 1699-1703 (codified as amended in scattered sections of 26 U.S.C) (modifying third-party summons rules applicable to banks and other parties).
109. Specifically, we created a dichotomous variable and coded it as 1 if coverage occurred and as 0 if not. As expected, the Wall Street Journal's coverage was far more extensive than that found in the other newspapers: Our data indicates that the Wall Street Journal published articles on 38% of the cases decided between 1954 and 2004, the Los Angeles Times reported on 15%, the Chicago Tribune reported on 12%, and the New York Times reported on 8%.
110. 408 U.S. 125 (1972).
111. Id. at 126-31.
112. Id. at 135-44.
113. Id. at 135.
114. See 26 U.S.C. § 2036 (2000) (stating that retention of voting shares in controlled corporation constitutes retention of enjoyment for tax purposes and thus is included in value of estate).
115. 465 U.S. 330 (1984).
116. Id. at 331-33, 344-45.
117. See id. at 353 (Powell, J., dissenting) ("[The issues of the case involve] delicate issues of policy that should be addressed in the legislative forum."); see also id. at 345 (majority opinion) ("The Court's decision today rejects a longstanding principle of taxation, and creates in its stead a new and anomalous rule of law. Such action is best left to Congress.").
118. Id. at 353 (Powell, J., dissenting).
119. See Deficit Reduction Act of 1984, Pub. L. No. 98-369, §172, 98 Stat. 494, 699-703 (codifying Dickman decision to allow taxation of benefits obtained from gift loan with below-market interest terms).
120. Eskridge, supra note 2, at 388-89.
121. Pablo T. Spiller & Emerson H. Tiller, Invitations To Override: Congressional Reversals of Supreme Court Decisions, 16 INT'L REV. L. & ECON. 503, 507-19;
122. see also Lori Hausegger & Lawrence Baum, Inviting Congressional Action: A Study of Supreme Court Motivations in Statutory Interpretation, 43 AM. J. POL. SCT. 162 (1999) (exploring various rationales for judicial invitations for review).
123. Spiller & Tiller, supra note 96, at 512-14.
124. We do, however, find this to be an interesting and important feature of the oversight process and plan to investigate the rationales underlying judicial invitations to review in future works.
125. To measure this effect, we created a dichotomous variable to test our hypothesis that invitations increased the probability of congressional oversight. A case with a judicial invitation (in any opinion) is coded as 1 and all other cases as 0. Of the 279 decisions the Court rendered between 1954 and 2005, the Justices invited legislative oversight 31 times. We identified judicial invitations for congressional review by reading each Court opinion.
126. See Hettinger & Zorn, supra note 9, at 14 (hypothesizing that Supreme Court voting patterns play role in oversight process).
127. Eskridge, Solimine and Walker, and Hettinger and Zorn investigate statutory decisionmaking and find that a unanimous Court is more likely to avoid subsequent legislative overrides than a divided Court. Eskridge, supra note 2, at 346-51; Hettinger & Zorn, supra note 9, at 22; Solimine & Walker, supra note 48, at 447.
128. See, e.g., KINGDON, supra note 47, at 105-09 (noting that changes in state of economy both promote and constrain placement of budgetary issues on legislative agenda); James M. Verdier, The President, Congress, and Tax Reform: Patterns over Three Decades, 499 ANNALS AM. ACAD. POL. & SOC. SCT. 114, 117 (1988) (noting that economic forces have helped place tax reform on legislative agenda but may not influence substance of reforms).
129. Verdier, supra note 102, at 117.
130. Economic Recovery Tax Act of 1981, Pub. L. No. 97-34, 95 Stat. 172 (1981) (codified as amended in scattered sections of 26 U.S.C).
131. Balanced Budget and Emergency Deficit Control Act of 1985. Pub. L. No. 99-177, 99 Stat. 1038 (1985) (codified as amended in scattered sections of 2, 15, 26 & 42 U.S.C).
132. See Staudt, Agenda Setting, supra note 33, at 911-14 (reviewing Supreme Court certiorari memoranda and noting that amount of money at issue helps to determine importance of case); see also SUP. CT. R. 10 (outlining standards for making certiorari decisions and indicating that case must have important and national implications).
133. Verdier, supra note 102, at 117-19; see also STAFF OF J. ECON. COMM., 108TH CONG., CONSTANT CHANGE: A HISTORY OF FEDERAL TAXES 1-6 (Comm. Print 2003) (discussing divergent approaches to taxation and economic stimulation).
134. Verdier, supra note 102, at 118.
135. 485 U.S. 212 (1988). See supra notes 40-42 (discussing Senator Dole's response to Arkansas Best).
136. See Allen J. Klein & D. Bruce Hendrick, Taxation of Business Hedges: An Analysis of the New Regulations, 46 TAX EXECUTIVE 484-85 (1994) (noting that Supreme Court's decision in Arkansas Best addressed problems created in Corn Products Refining Co. v. Commissioner, 350 U.S. 46 (1955), which provided opportunities for taxpayers to "game" system).
137. But see J. DWIGHT EVANS, A CRITICAL ANALYSIS OF TAXATION OF BUSINESS HEDGING AND THE CASE FOR COMPREHENSIVE CONGRESSIONAL LEGISLATION 1-13 (Tax Foundation Background Paper No. 7) (1994), available at http://www.taxfoundation.org/ publications/show/593.html (critiquing Supreme Court's decision in Arkansas Best as creating uncertainty).
138. 138 CONG. REC. 28,738, 28,738 (1992) (statement of Sen. Dole) ("[T]he Supreme Court's decision in Arkansas Best Corp. versus Commissioner has caused serious disruptions in the ability of farmers, ranchers, and other businesses, both in agriculture and elsewhere in our economy, to use hedging transactions to reduce the risks of doing business.").
139. See generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 1-12 (2002) (presenting argument that Justices are ideologically driven in decisionmaking process);
140. Jeffrey A. Segal, Separation-of-Powers Games in the Positive Political Theory of Congress and Courts, 91 AM. POL. SCT. REV, 28, 33 (1997) (noting that model of Justices deciding cases based on personal preferences "has found strong support in the empirical literature");
141. Jeffrey A. Segal & Chad Westerland, The Supreme Court, Congress, and Judicial Review, 83 N.C. L. REV. 1323, 1347-50 (2005) (finding that Justices make decisions according to their own preferences regardless of conflicting congressional viewpoints); .
142. see also HAROLD J. SPAETH & JEFFREY A. SEGAL, MAJORITY RULE OR MINORITY WILL: ADHERENCE TO PRECEDENT ON THE U.S. SUPREME COURT- (1999) (examining extent to which precedent influences Supreme Court decisions and concluding that justices are "rarely influenced by stare decisis," but instead decide according to their preferences).
143. See generally Hettinger & Zorn, supra note 9, at 7 ("Existing separation-of-powers models predict that when Congress is unhappy with a decision of the Court, it will always act to overturn the offending decision."); Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 AM. POL. SCT. REV. 85 (1987) (exploring legislative decisionmaking and noting role of committees in achieving legislators' political preferences).
144. Although we hypothesize that political preferences will play a role in legislative oversight of the Supreme Court, we also expect that capturing this dynamic will be a difficult task. See generally Staudt, Epstein & Wiedenbeck, supra note 33 (exploring role of judicial ideology in deciding tax cases, but noting that while patterns emerge, politics is just one of several possible explanatory factors for such patterns).
145. For a discussion of these scores, see generally KEITH T. POOLE & HOWARD ROSENTHAL, CONGRESS: A POLITICAL-ECONOMIC HISTORY OF ROLL- CALL VOTING (1997),
146. and Keith T. Poole, Recovering a Basic Space from a Set of Issue Scales, 42 AM. J. POL. Sci. 954 (1998). To review the actual data, see Keith T. Poole, Estimating a Basic Space from a Set of Issue Scales, http://voteview.com/basic.htm (under heading "Common Space Scores: Congresses 75-109") (last visited July 10, 2007) [hereinafter Poole, Estimating a Basic Space].
147. Lee Epstein, Andrew D. Martin, Jeffrey A. Segal & Chad Westerland, The Judicial Common Space, 23 J.L. ECON. & ORG. 303 (2007).
148. See id. at 306 (noting that central goal in developing judicial common space scores was to make them comparable to congressional scores of Poole and Rosenthal).
149. See, e.g., GARY W. COX & MATHEW D. MCCUBBINS, LEGISLATIVE LEVIATHAN: PARTY GOVERNMENT IN THE HOUSE 77-124 (1993) (arguing that party in control of chamber is key decisionmaking body);
150. KEITH KREHBIEL, INFORMATION AND LEGISLATIVE ORGANIZATION 262-64 (1991) (claiming that "legislative choices in salient policy domains" are chamber median choices);
151. Kenneth A. Shepsle & Barry R. Weingast, Positive Theories of Congressional Institutions, 19 LEGIS. STUD. Q. 149, 158-65 (1994) (describing modern political science theories of congressional decisionmaking power);
152. Barry R. Weingast & William J. Marshall, The Industrial Organization of Congress; Or, Why Legislatures, Like Firms, Are Not Organized as Markets, 96 J. POL. ECON. 132, 143-55 (1988) (developing model with committees as key decisionmaking body and arguing that Congress appears to function similarly).
153. For a discussion of the three competing models of power in the congressional committee system-the chamber-dominated, party-dominated, and independent-committee models-see generally FOREST MALTZMAN, COMPETING PRINCIPALS: COMMITTEES, PARTIES, AND THE ORGANIZATION OF CONGRESS 9-32 (1997).
154. This is the distance between the Senate majority party in 2003 and Supreme Court in 1969. This distance is relevant because a Court decision rendered in 1969 could be reviewed and acted upon by Congress in 2003 (or any other year post-1969).
155. This is the distance between the House Ways and Means Committee in 2004 and the Supreme Court in 1956.
156. See Lee Epstein et al., The Judicial Common Space, 23 J.L. ECON. & ORG. 303, 313 (2007) (comparing median House and Senate members with Supreme Court median for 1953-2000);
157. Poole, Estimating a Basic Space, supra note 115 (providing Common Space scores for House and Senate for 1937-2002).
158. See STAFF OF J. COMM. ON TAXATION, 104TH CONG., BACKGROUND AND ISSUES RELATING TO TAXATION OF U.S. CITIZENS WHO RELINOUISH CITIZENSHIP 3-8 (Comm. Print 1995) (describing proposal in H.R. 831, § 5,104th Cong. (1995) to impose expanded expatriation tax).
159. STAFF OF J. COMM. ON TAXATION, supra note 123, at 14-17, 21-30 (citing Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955), and General American Investors Co. v. Commissioner, 348 U.S. 434 (1955), among other cases, to argue that taxation on unrealized income through expatriation tax is constitutional).
160. STAFF OF J. COMM. ON TAXATION, 105TH CONG., DESCRIPTION AND ANALYSIS OF CERTAIN REVENUE-RAISING PROVISIONS CONTAINED IN THE PRESIDENT'S FISCAL YEAR 1998 BUDGET PROPOSAL 33 (Comm. Print 1997) (citing Comm'r v. P.G. Lake, Inc., 356 U.S. 260 (1958), and Comm'r v. Gillette Motor Transp., Inc., 364 U.S. 130 (1960)).
161. See, e.g., STAFF OF J. COMM. ON TAXATION, 99TH CONG., DESCRIPTION OF BILLS RELATING TO THE TAX TREATMENT OF MORTGAGE RELATED AND OTHER ASSET BACKED SECURITIES (S. 1959 AND S. 1978) AND ENVIRONMENTAL ZONES (S. 1839) 9 (Comm. Print 1986) (citing Comm'r v. Nat'i Alfalfa Dehydrating & Milling Co., 417 U.S. 134 (1974); United States v. Midland-Ross Corp., 381 U.S. 54 (1965)); S. REP. NO. 99-313 (1986) (citing Comm'r v. Idaho Power Co., 418 U.S. 1 (1974)), as reprinted in 1986 U.S.C.C.A.N. 4075.
162. Pub. L. No. 88-272, 78 Stat. 19 (1964) (codified as amended in scattered sections of 26 U.S.C).
163. Pub. L. No. 91-172, 83 Stat. 487 (1969) (codified as amended in scattered sections of 26 U.S.C).
164. Pub. L. No. 97-34, 95 Stat. 172 (1981) (codified as amended in scattered sections of 26 U.S.C).
165. Pub. L. No. 99-514, 100 Stat. 2085 (1986) (codified as amended in scattered sections of 26 U.S.C.).
166. Pub. L. No. 93-344, 88 Stat. 297 (1974) (codified as amended in scattered sections of 2 U.S.C).
167. Pub. L. No. 99-177, 99 Stat. 1037 (1985) (codified as amended in scattered sections of 2. 15, 26 & 42 U.S.C).
168. Pub. L. No. 101-508, 104 Stat. 1388-573 (1990) (codified as amended in scattered sections of 2, 15, 31 & 42 U.S.C).
169. We use a two-year window because it accounts for the two-year election cycles of the House of Representatives.
170. A possible exception to this decline in attention involves the Budget Enforcement Act of 1990. This law, extended through 2002, mandated revenue-neutral legislation: Legislators could pass new tax expenditures only if they were offset by revenue increases. See Budget Enforcement Act of 1990, Pub. L. No. 101-508, §§13001-13401,104 Stat. 1388-573, 1388-573 to -628 (1990) (codified as amended in scattered sections of 2,15,31 & 42 U.S.C.) (enacting "pay-as-you-go" policy); Manoj Viswanathan, Note, Sunset Provisions in the Tax Code: A Critical Evaluation and Prescriptions for the Future, 82 N.Y.U. L. REV. 656, 686 (2007) (describing PAYGO rules and noting their 2002 repeal). We believe Supreme Court cases will take on increased importance during this era because of their potential to affect the revenue implications of existing statutory enactments. For example, Newark Morning Ledger Co. v. United States, 507 U.S. 546 (1993), involved a newspaper's attempt to amortize the cost of customer lists. Id. at 550. The government argued against the amortization, noting that if the Justices allowed the taxpayer to prevail, the taxpayers would be able to reduce their taxable income by several millions of dollars when neither Congress nor the Treasury intended such a deduction. Brief of the United States, supra note 56, at 11. When the Court held for the taxpayer, an existing provision in the tax code immediately cost the government much more than anticipated by the budget analysts in Congress. Because of these fiscal implications, overriding the outcome would effectively implement a tax increase-thus making it feasible to adopt new expenditures while still abiding by the revenue-neutral mandate of the Budget Enforcement Act. Not surprisingly, various legislators argued for a reversal of Newark Morning Ledger. See, e.g., 137 CONG. REC. 1917, 1917 (1991) (statement of Rep. Donnelly) (advocating overturning Newark Morning Ledger). Accordingly, we hypothesize that the Budget Enforcement Act of 1990 will lead to increased attention to Supreme Court decisions between 1988 and 2002 (time period from Congress's first consideration of legislation until legislation's expiration).
171. See supra Table 1.
172. The dependent variable (i.e., the action that we seek to explain) is the occurrence of congressional oversight; we coded cases receiving oversight as 1 and cases that Congress did not address as 0. Because we have a dichotomous dependent variable, we use a logit model for testing the relationship between our explanatory variables and oversight of Supreme Court cases. For a useful discussion of logit models, see J. SCOTT LONG, REGRESSION MODELS FOR CATEGORICAL AND LIMITED DEPENDENT VARIABLES 34-113 (1997).
173. Cases such as Commissioner v. Lo Bue, 351 U.S. 243 (1956), and Cheek v. United States, 498 U.S. 192 (1991), for example, sparked just one comment. In contrast, Bob Jones University v. United States, 461 U.S. 574 (1983), a case that permitted the Internal Revenue Service to deny charitable status to educational institutions with racially biased policies, id. at 605, led to fifty-seven legislative responses, and Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983), which upheld a law denying charitable status to lobbying organizations, id. at 550-51, generated more than forty mentions in the legislative history. The extent of the commentary, of course, does not necessarily lead to subsequent congressional action. See supra notes 72-83 and accompanying text (giving example of case with extensive commentary which did not lead to codification or override legislation). To explain the difference in oversight activity, we use a negative binomial regression model. We chose this model over the Poisson model due to over-dispersion of the data. See LONG, supra note 137, at 217-49, for a useful discussion of various count models and for an explanation of the statistical advantages of the negative binomial regression model. The dependent variable in this model is the number of congressional responses to each individual case. This variable is discrete and ranges from 0 to 57 congressional references.
174. See supranote 58 (explaining this limitation). We examine the role of the legislators in Part IV.B, infra.
175. See infra Part III.B.
176. See infra Part IV.B.
177. To estimate these probabilities we rely on the software Clarify. We determined the average probability of oversight by setting all the variables to their means. See Michael Tomz, Jason Wittenberg & Gary King, Clarify: Software for Interpreting and Presenting Statistical Results 6 (June 1, 2001), http://gking.harvard.edu/clarify/clarify.pdf ("[Clarify] allows researchers to calculate virtually any quantity that would shed light on a particular problem, and provides a number of Stata procedures to do this easily,").
178. See generally Gary King, Michael Tomz & Jason Wittenberg, Making the Most of Statistical Analyses: Improving Interpretation and Presentation. 44 AM. J. POL. SCI. 347 (2000) (describing uses and benefits of Clarify software).
179. See supra Table 1.
180. While the journalists and the judicial vote count do not have a statistically significant impact on legislative activity, it is nonetheless useful to examine the total effects of all the variables, given that they all increase oversight.
181. To investigate this finding further, we created a model that has a dichotomous dependent variable (coded as 1 if Congress adopted legal reform in response to the Supreme Court case, and 0 if no reform was associated with the response) and an explanatory variable equal to the number of reviews each case received in the oversight process. We estimated this simple bivariate logit model and found that as the legislative references to a case increased, the likelihood of a legislative enactment also increased at statistically significant levels. As far as substantive impact, on average a case that is commented upon in Congress has a 16% chance of being overridden, modified, or codified, but when the frequency of oversight is at the maximum, the probability increases to 91%. To estimate these probabilities we again used the Clarify software.
182. See Eskridge, supra note 2, at 345 (finding that two-thirds of overrides occur within five years of Supreme Court's decision).
183. Recently, Hettinger and Zorn examined the duration period between a Supreme Court decision and congressional responses, but they limited their analysis to override activity. Hettinger & Zorn, supra note 9, at 9. We discuss how our findings differ in the text accompanying notes 159-60, infra.
184. See Judith D. Singer & John B. Willet, It's About Time: Using Discrete-Time Survival Analysis To Study Duration and the Timing of Events, 18 J. EDUC STAT. 155, 155-57 (1993) (describing how discrete-time survival analysis provides useful framework for studying event occurrence over time). Following Singer and Willet, we replicated each observation (i.e., each case) in our database until the point at which Congress commented upon the case. Accordingly, cases that were subject to oversight within a year of the decision show up in the data set just once, but cases that lie thirty years before oversight took place show up thirty times. By using this method, we can account for time-varying factors such as politics, economic factors, and legal reform.
185. To measure the speed of oversight, we use fifty-one "period-dummies, " which allow us to assess the probability of a congressional response in each year after the Court decides the case. Each period-dummy represents a year in which a case could be reviewed. Thus a Supreme Court case decided in the first year of our study had a total of fifty-one different periods in which it could be subject to oversight. Cases decided later were subject to oversight in a smaller number of periods - a case decided in 1995, for example, has only ten different periods in which it was subject to oversight. The model has fifty-one periods for the fifty-one years in our study, 1954-2004.
186. See supra notes 112-22 and accompanying text for discussion of the three political models.
187. The time periods-as represented by period - dummies, see supra note 149-did not achieve statistical significance in any of our models, indicating that there was no time period in which Congress was particularly likely to act on a Supreme Court case.
188. We used the Clarify software to determine probabilities.
189. See supra Table 2.
190. See supra note 69 and accompanying text (citing to sources discussing media's influence on Congress).
191. See KINGDON, supra note 47, at 57-61 (discussing influence of media and noting that their impact is "less-than- anticipated").
192. The "Deficit to GDP Ratio" variable was coded as the deficit level in real numbers divided by the GDP in real numbers. Since the deficit is a negative number while the GDP is positive, this independent variable is always negative, and so an increase in the variable indicates decreasing deficits.
193. Spiller & Tiller, supra note 96, at 503-05 (suggesting that Justices, in some circumstances, may take advantage of politically aligned Congress by inviting legislative overrides).
194. Our political variables capture the ideological position of the median member in each chamber, chamber majority party, or committee, not the ideology of the legislator making comments. This means the distance measure, while capturing the political relationship between Congress and the Court generally, may not be an accurate description of the distance between the political views of the individual legislators making comments on the floor and the Supreme Court. For example, the House as a whole may be very conservative, but if the member making the comment is left-leaning, our measures will not accurately depict the circumstances in which the Court-Congress dialogue takes place.
195. See Eskridge, supra note 2, at 359-63, 388-89 (arguing that lobbyists and judicial invitations play key roles in legislative oversight);
196. Hettinger & Zorn, supra note 9. at 21-22 (finding that interest groups, as measured by amici, have "a large positive influence on the probability of an override");
197. Ignagni et al., supra note 24, at 474 tbl.1, 478 (finding judicial invitations for review increase likelihood of congressional response).
198. E.g., Hettinger & Zorn, supra note 9, at 14, 22 (finding that Congress is less likely to override unanimous decisions). But see id. at 14 (listing studies that have reached opposite conclusions as to whether unanimous decision have such effect).
199. See Hettinger & Zorn, supra note 9, at 7-9 (noting that, although much of theoretical literature predicts political factors will play key role in legislative oversight process, existing empirical studies have not produced robust findings).
200. Our analysis in this Section differs from that in Table 1 in two aspects that should be noted. First, for the purposes of Table 1, we counted Supreme Court decisions that joined two separate cases as distinct tax cases. This enabled us to observe congressional responses to different taxpayers even though the Justices joined the claims when issuing a decision.
201. In this Part, we do not count these cases separately, so the number of observations falls from 152 to 148.
202. Secondly, in Table 1 we characterized all congressional responses that were not negative in nature as "positive responses." In this context, we disaggregate neutral and positive responses for purposes of both qualitative and quantitative analysis.
203. See supra notes 17-21 and accompanying text.
204. Throughout this discussion, our numbers will differ from those presented in Table I, supra. This discrepancy is in part due to the fact that we analyze 148 cases in this Part rather than the 152 total cases discussed in Table 1, as we treat jointly decided cases as a single unit of analysis in this Section. Further, we perform the analysis at the case level in this Section as opposed to tallying the total number of responses: With respect to the number of override proposals, for example, because many cases were subject to multiple override proposals, we examine only 38 instances of such proposals rather than the 55 mentioned in Table 1, supra. See also supra note 162 (noting other aspects in which our analysis in this Section differs from that in Table 1).
205. 390 U.S. 62 (1968).
206. 397 U.S. 301 (1970).
207. 383 U.S. 569 (1966).
208. 506 U.S. 168 (1993).
209. 531 U.S. 206 (2001). The additional cases subject to overriding legislation were: Commissioner v. Lundy, 516 U.S. 235 (1996);
210. United States v. American College of Physicians, 475 U.S. 834 (1986);
211. Commissioner v. Engte, 464 U.S. 206 (1984);
212. United States v. LaSalle National Bank, 437 U.S. 298 (1978);
213. Commissioner v. Standard Life & Accident Insurance Co., 433 U.S. 148 (1977);
214. Boh Jones University v. Simon, 416 U.S. 725 (1974);
215. Haynes v. United States, 390 U.S. 85 (1968);
216. Braunstein v. Commissioner, 374 U.S. 65 (1963);
217. Commissioner v. Lester, 366 U.S. 299 (1961);
218. United States v. Cannelton Sewer Pipe Co., 364 U.S. 76 (1960);
219. and Commissioner v. Duberstein, 363 U.S. 278 (1960).
220. Legislators proposed overrides that did not succeed in the following cases: United States v. Flor D'Italia, Inc., 536 U.S. 238 (2002);
221. United Dominion Industries, Inc. v. United States, 532 U.S. 822 (2001);
222. United States v. Brockamp, 519 U.S. 347 (1997);
223. Cottage Savings Ass'n v. Commissioner, 499 U.S. 554 (1991);
224. Colonial American Life Insurance Co. v. Commissioner, 491 U.S. 244 (1989);
225. South Carolina v. Baker, 485 U.S. 505 (1988);
226. Diedrich v. Commissioner, 457 U.S. 191 (1982);
227. Jewett v. Commissioner, 455 U.S. 305 (1982);
228. Central Tablet Manufacturing Co. v. United States, 417 U.S. 673 (1974);
229. Marchetti v. United States, 390 U.S. 39 (1968);
230. Northeastern Pennsylvania National Bank & Trust Co. v. United States, 387 U.S. 213 (1967);
231. United States v. Equitable Life Assurance Society, 384 U.S. 323 (1966);
232. United States v. Catto, 384 U.S. 102 (1966);
233. United States v. Pioneer American Insurance Co., 374 U.S. 84 (1963);
234. Lisbon Shops, Inc. v. Koehler, 353 U.S. 382 (1957);
235. Automobile Club of Michigan v. Commissioner, 353 U.S. 180 (1957);
236. Corn Products Refining Co. v. Commissioner, 350 U.S. 46 (1955);
237. and United States v. Acri, 348 U.S. 211 (1955).
238. 351 U.S. 131 (1956).
239. S. REP, NO. 86-1910, at 20-21 (1960) (citing Berra in discussion of false and fraudulent claims for deductions).
240. 397 U.S. 72 (1970).
241. 132 CONG. REC. 13,836, 13,836 (1986) (statement of Sen. Laxalt).
242. 476 U.S. 558 (1986).
243. 512 U.S. 26 (1994).
244. 139 CONG. REC. 19,751, 19,757 (1993) (statement of Sen. Gorton);
245. CONG. REC. 26,003, 26,003 (1993) (statement of Sen. Domenici).
246. Twelve of the thirty-eight cases (32%) involved the corporate income tax, fifteen cases (39%) involved the individual income tax, and the remaining eleven cases (29%) involved a variety of other code provisions, including the gift and estate tax, charitable organizations, and so forth.
247. Taxpayers prevailed in fifteen (39%) of the tax cases subject to a negative review.
248. The Court issued a unanimous decision in twelve (32%) of the cases subject to negative review.
249. Amici curiae filed briefs in fourteen (37%) of the cases subject to negative review.
250. The Justices invited a congressional response to five (13%) of the cases.
251. The media reported on twenty-three (61%) of the decisions subject to a negative review.
252. For an explanation of why the numbers in this section differ slightly from those presented in Table 1, see supra note 164.
253. From a normative perspective, scholars challenge congressional codification proposals as a waste of time. See, e.g., Adam Harris Kurland, Tinkering with the Federal Rules of Evidence (Dec. 1, 2000), http://www.law.umich.edu/thayer/kurtink.htm (arguing that codification of Supreme Court decisions, at least in context of Federal Rules of Evidence, is "a wholly empty and unnecessary gesture"). Interest groups, however, often argue for codification in an effort to solidify an outcome. The Cato Institute, for example, recently argued for the codification of the Supreme Court's ruling in NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).
254. which holds that "employers have an undisputed right to hire permanent replacement workers for striking workers in economic strikes." CHARLES W. BAIRD, CATO HANDBOOK FOR CONGRESS: POLICY RECOMMENDATIONS FOR THE 108TH CONGRESS 345 (2003), available at http://www.cato.org/pubs/handbook/hb108/hb108-34.pdf.
255. 435 U.S. 561 (1978).
256. See STAFF OF J. COMM. ON TAXATION, 97TH CONG., ANALYSIS OF SAFE-HARBOR LEASING 6-7 (Comm. Print 1982) (describing state of law under Lyons).
257. 364 U.S. 361 (1960).
258. See STAFF OF J. COMM. ON TAXATION, 107TH CONG., BACKGROUND AND PRESENT LAW RELATING TO TAX SHELTERS 5, 8, 25-27 (Comm. Print 2002) (referring to several cases including Frank Lyon. 435 U.S. 561;
259. Comm'r v. Nat'l Alfalfa Dehydrating & Milling Co., 417 U.S. 134 (1974);
260. Knetsch v. United States, 364 U.S. 361 (1960); Comm'r v. Hansen, 360 U.S. 446 (1959)).
261. Cases that were expanded include: United States v. Goodyear Tire & Rubber Co. 493 U.S. 132 (1989);
262. St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772 (1981);
263. Fausner v. Commissioner, 413 U.S. 838 (1973);
264. United States v. Chicago, Burlington & Quincy Railroad, 412 U.S. 401 (1973);
265. Donaldson v. United States. 400 U.S. 517 (1971):
266. Woodward v. Commissioner, 397 U.S. 572 (1970);
267. United States v. Hilton Hotels Corp., 397 U.S. 580 (1970):
268. United States v. Correll, 389 U.S. 299 (1967);
269. United States v. Midland-Ross Corp.. 381 U.S. 54 (1965);
270. Enochs v. Williams Packing & Navigation Co.. 370 U.S. 1 (1962):
271. United States v. Scovil. 438 U.S. 218 (1955);
272. United States v. City of New Britain, 347 U.S. 81 (1954);
273. and Harris v. Commissioner, 340 U.S. 106 (1950).
274. See, e.g., H.R. REP. No. 98-432, at 203 (1983) (discussing and expanding Harris):
275. S. REP. No. 97-144, at 166 (1981) (expanding Midland-Ross),
276. as reprinted in 1981 U.S.C.CA.N. 105, 264; H.R. REP. NO. 97-201, at 265-68 (1981) (expanding Correll): STAFF OF J. COMM. ON TAXATION. 103D CONG., EXPLANATION OF PROPOSED INCOME TAX TREATY AND PROPOSED PROTOCOL BETWEEN THE UNITED STATES AND 'THE KINGDOM OF THE NETHERLANDS 92-93 (Comm. Print 1993) (discussing proposed treaty which would employ accounting principles of Goodyear Tire & Rubber Co. ).
277. Cases that allegedly caused confusion were: Commissioner v. Schleier, 515 U.S. 323 (1995);
278. United States v. Williams. 514 U.S. 527 (1995);
279. Bufferd v. Commissioner. 506 U.S. 523 (1993):
280. United States v. Vogel Fertilizer Co., 455 U.S. 16 (1982):
281. Central Illinois Public Service Co. v. United States, 435 U.S. 21 (1978);
282. G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977);
283. Commissioner v. Shapiro. 424 U.S. 614 (1976);
284. Commissioner v. Lincoln Savings & Loan Ass'n. 403 U.S. 345 (1971);
285. Tank Truck Rentals v. Commissioner. 356 U.S. 30 (1958):
286. and Commissioner v. Lo Bue. 351 U.S. 243 (1956).
287. In two cases, O'Gilvie v. United States, 519 U.S. 79 (1996),
288. and Laing v. United States, 423 U.S. 161 (1976),
289. legislators had begun tax reform efforts in response to an appellate court decision, and when the Court decided the case in a way that aligned with legislative preferences the outcome was codified. Finally, not every positive response entailed a legislative initiative. In two cases, members of Congress referred to cases to signal that they believed the Justices got the law exactly right. See 132 CONG. REC. 13,836, 13,836 (1986) (Statement of Sen. Laxalt) (sanctioning result in Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970));
290. STAFF OF J. COMM. ON TAXATION, 101ST CONG., TAX RULES RELATING TO PUERTO RICO UNDER PRESENT LAW AND UNDER STATEHOOD, INDEPENDENCE, AND ENHANCED COMMONWEALTH STATUS 37-39 (Comm. Print 1989) (approving of result in United States v. Ptasynski, 462 U.S. 74 (1983)).
291. Fifteen of the thirty-three cases (45%) involved the corporate income tax, ten cases (30%) involved the individual income tax and the remaining eight cases (24%) involved a variety of other provisions.
292. The taxpayer prevailed in eleven (33%) of the cases.
293. Amici curiae filed briefs in twelve of the cases (36%).
294. Justices invited congressional review in four (12%) of the cases.
295. The media covered twenty (61%) of the cases.
296. Congress responded to 148 cases, and in ninety-three of these cases the Justices reached a divided vote.
297. See supra note 180 and infra notes 207 & 228.
298. See, e.g., EVERETT MCKINLEY DIRKSEN & GEORGE A. SMATHERS, STATUS OF TAXES AND TAX LIENS IN BANKRUPTCY PROCEEDINGS, S. REP. NO. 89-1159, at 22 (1966) (including Senate Finance Committee minority's objections to legislative proposal on grounds that it would "contradict the holding of the Supreme Court in United States v. Speers") (citing United States v. Speers, 382 U.S. 266 (1965)).
299. H.R. REP. 100-795, at 569-70 (1988) (citing Ark. Best Corp. v. Comm'r, 485 U.S. 212 (1988)).
300. 138 CONG. REC. 28,738, 28,738 (1992) (statement of Sen. Dole) (describing potentially "devastating" consequences for farmers if Arkansas Best is given broad reading). Legislators proposed codification after critical comments to several cases: United States v. American Bar Endowment, 477 U.S. 105 (1986);
301. United States v. Lee. 455 U.S. 252 (1982);
302. and Thor Power Tool Co. v. Commissioner, 439 U.S. 522 (1979).
303. 465 U.S. 330 (1984).
304. See supra notes 90-94 and accompanying text (discussing Dickman).
305. H.R. REP. NO. 98-861, at 1011-12 (1984) (Conf. Rep.).
306. Gift Tax Relief Legislation: Hearing Before the Subcomm. on Estate and Gift Taxation and the Subcomm. on Taxation and Debt Mgt. of the S. Comm. on Finance, 98th Cong. 10 (1984) (summarizing proposals to overrule or to limit Dickman).
307. In other contexts, legislators would argue for one approach initially, and then later for a different approach. Several cases sparked this type of mixed response: Newark Morning Ledger Co. v. United States, 507 U.S. 546 (1993);
308. INDOPCO, Inc. v. Commissioner, 503 U.S. 79 (1992);
309. Commissioner v. Kowalski, 434 U.S. 77 (1977);
310. Commissioner v. Idaho Power Co., 418 U.S. 1 (1974);
311. United States v. Byrum, 408 U.S. 125 (1972);
312. Bingler v. Johnson, 394 U.S. 741. (1969);
313. Commissioner v. Brown, 380 U.S. 563 (1965);
314. United States v. Powell, 379 U.S. 48 (1964);
315. Cornmarano v. United States, 358 U.S. 498 (1959):
316. and Peurifoy v. Commissioner, 358 U.S. 59 (1958).
317. In other contexts, legislators argued that the case should be construed narrowly or broadly for purposes of later legislation, such as in Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955).
318. Finally, legislators would at times simultaneously overrule some aspects of a case while codifying other aspects, such as in Rowan Cos. v. United States. 452 U.S. 247 (1981 ),
319. and Commissioner v. Hansen. 360 U.S. 446 (1959).
320. Other cases that engendered mixed responses include: Arkansas Best Corp. v. Commissioner, 485 U.S. 212 (1988);
321. United States v. American Bar Endowment, 477 U.S. 105 (1986);
322. Dickman v. Commissioner, 465 U.S. 330 (1984):
323. United States v. Lee, 455 U.S. 252 (1982);
324. Thor Power Tool Co. v. Commissioner, 439 U.S. 522 (1979);
325. United States v. Speers, 382 U.S. 266 (1965);
326. Tank Truck Rentals, Inc. v. Commissioner. 356 U.S. 30 (1958);
327. Corn Products Refining Co. v. Commissioner, 350 U.S. 46 (1955);
328. and United States v. California Eastern Line, Inc., 348 U.S. 351 (1955).
329. Fifteen of the twenty-eight cases (54%) subject to a mixed review were decided by a divided vote of the Supreme Court.
330. Amici curiae filed briefs in fourteen (50%) of the cases subject to a mixed review.
331. Of the cases subject to a mixed response, our data indicate that ten cases (36%) involved the corporate income tax, and six cases (21 %) involved the individual income tax; the Justices invited review of six cases (21%); and the media reported on ten cases (36%).
332. These were not override or codification initiatives, but were instead intended to address statutory provisions affected by the outcome.
333. See Revenue Act of 1926, Pub. L. No. 69-20. § 1203. 44 Stat. 9, 127-28 (codified as amended at I.R.C. §§ 8001-8005, 8021-8023) (creating Joint Committee on Taxation and not including legislative drafting among its "duties").
334. For a discussion of the responsibilities of the Joint Committee on Taxation, see supra notes 52-53 and accompanying text.
335. For example, the Joint Committee reported on presidential budget proposals and cited cases such as Commissioner v. P.G. Lake, Inc., 356 U.S. 260 (1958),
336. and Commissioner v. Gillette Motor Transport, Inc., 364 U.S. 130 (1960),
337. noting that the proposals would not change these cases' outcomes. STAFF OF J. COMM. ON TAXATION. 105TH CONG., DESCRIPTION AND ANALYSIS OF CERTAIN REVENUE-RAISING PROVISIONS CONTAINED IN THE PRESIDENT'S FISCAL YEAR 1998 BUDGET PROPOSAL 31 (Comm. Print 1997).
338. 348 U.S. 121 (1954).
339. 380 U.S. 343 (1965).
340. 412 U.S. 346 (1973).
341. 132 CONG. REC. 27,757, 27,757-58, 27,764 (1986) (statement of Sen. Thurmond).
342. Legislators also made neutral comments on Drye v. United States, 528 U.S. 49 (1999);
343. United States v. Irvine, 511 U.S. 224 (1994):
344. Freytag v. Commissioner, 501 U.S. 868 (1991);
345. United States v. Centennial Savings Bank, 499 U.S. 573 (1991);
346. United States v. Stuart, 489 U.S. 353 (1989);
347. Church of Scientology of California v. Internal Revenue Service. 484 U.S. 9 (1987);
348. Commissioner v. Asphalt Products Co., 482 U.S. 117 (1987);
349. Commissioner v. Groetzinger, 480 U.S. 23 (1987);
350. United States v. Arthur Young & Co., 465 U.S. 805 (1984):
351. Commissioner v. Tufts, 461 U.S. 300 (1983);
352. United States v. Rodgers, 461 U.S. 677 (1983);
353. New York Telephone Co. v. New York State Department of Labor, 440 U.S. 519 (1979);
354. Massachusetts v. United States, 435 U.S. 444 (1978);
355. United States v. Consumer Life Insurance Co., 430 U.S. 725 (1977);
356. Commissioner v. First Security Bank of Utah, 405 U.S. 394 (1972);
357. United States v. Mitchell, 403 U.S. 190 (1971);
358. Leary v. United States, 395 U.S. 6 (1969);
359. Commissioner v. Gordon, 391 U.S. 83 (1968);
360. Commissioner v. Estate of Bosch. 387 U.S. 456 (1967);
361. Reisman v. Caplin, 375 U.S. 440 (1964);
362. Aquilino v. United States, 363 U.S. 509 (1960);
363. and Commissioner v. Stern. 357 U.S. 39 (1958).
364. 348 U.S. 434 (1955).
365. 361 U.S. 87 (1959).
366. 366 U.S. 213 (1961).
367. STAFF OF J. COMM. ON TAXATION, 104TH CONG., BACKGROUND AND ISSUES RELATING TO TAXATION OF U.S. CITIZENS WHO RELINQUISH CITIZENSHIP 22-23 (Comm. Print 1995)
368. (citing Gen. Am. Inv. Co. and James): 138 CONG. REC. 6133, 6137 (1992) (statement of Sen. Pressler) (quoting Letter from American Law Division to Sen. Larry Pressler (Mar. 10, 1992))
369. (citing Acker to understand Court's approach to statutory construction). The following cases also sparked comments involving statutory interpretation: United States v. Cleveland Indians Baseball Co., 532 U.S. 200 (2001);
370. Hernandez v. Commissioner, 490 U.S. 680 (1989);
371. Commissioner v. Clark, 489 U.S. 726 (1989);
372. Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983);
373. National Muffler Dealers Ass'n v. United States, 440 U.S. 472 (1979);
374. Slodov v. United States, 436 U.S. 238 (1978);
375. Ivan Allen Co. v. United States, 422 U.S. 617 (1975);
376. Gurley v. Rhoden, 421 U.S. 200 (1975):
377. and American Automobile Ass'n v. United States, 367 U.S. 687 (1961).
378. 390 U.S. 85 (1968).
379. 420 U.S. 141 (1975).
380. S. REP. NO. 94-938, at 368 (1976) (citing Bisceglia);
381. S. REP. NO. 90-1501, at 52 (1968) (discussing proposed § 5861 and noting that statutory language was intended to reconcile with Haynes).
382. 494 U.S. 596 (1990).
383. 145 CONG. REC. 19,707, 19,707 (1999) (noting that House Bill resolves issue that Justices left undecided in Dalm).
384. 523 U.S. 360 (1998).
385. See STAFF OF J. COMM. ON TAXATION, 108TH CONG., DESCRIPTION OF "HIGHWAY REAUTHORIZATION AND EXCISE TAX SIMPLIFICATION ACT OF 2004" (Comm. Print 2004) (discussing U.S. Shoe Corp. and legislative response).
386. The Justices invited congressional review in 9 of the 49 cases (18%); they rendered a unanimous decision in 21 (43%) of the cases; the media covered 28 (57%) of the decisions that sparked a neutral response in Congress; 15 (31%) were corporate cases and 21 (43%) were individual tax cases.
387. Because our dependent variable is discrete and has four different values (the four different categories of oversight), we used a multinomial logit model. For a useful discussion of this type of model, see LONG, supra note 137. at 148-86.
388. A formal presentation of our findings would have involved the coefficients and robust standard errors for three of our categories, using a fourth category as the baseline or comparison group. Id. at 149,
389. Accordingly, even our relatively simple model would force us to present 3 different dependent variables, and 27 different independent variables. If we wanted to present every possible comparison, we would need to estimate the model four different times, leading to 12 dependent variables and 108 independent variables - an incomprehensible amount of data. See id. at 149 (noting that "the sheer number of comparisons can be overwhelming" in multinomial logit models).
390. See id. at 164-68 (suggesting that empiricists present results of multinomial logit models as probabilities for easier interpretation). We use the software Clarify to estimate our probabilities.
391. The raw coefficients that generated the probabilities are presented in Table 4A below, In reading the table, it is important to understand that the findings depend on the specification of the model and, in particular, the baseline group used for comparison. We adopted the conventional approach of using the largest group as the baseline outcome (here, the group of neutral responses), but if we had chosen any other group we would have achieved statistical significance not represented here. For example, using positive responses for the baseline group from which to compare all other groups, we find that lobbyists and journalists have a strong and statistically significant impact on the probability that Congress will respond in a mixed fashion to the Supreme Court cases.
392. See, e.g., Eskridge. supra note 2, at 359-63, 388-89
393. (arguing that lobbyists and judicial invitations play key roles in legislative overrides); Hettinger & Zorn, supra note 9. at 21-22 (finding that interest groups, as measured by amici, have "a large positive influence on the probability of an override").
394. See generally David Austen-Smith & John R. Wright, Counteractive Lobbying, 38 AM. J. POL. SCI. 25, 41 (1994) (exploring interest group lobbying strategies and noting increased lobbying of legislators predisposed to favor group in question when opposition begins to lobby).
395. See, e.g., Henschen, supra note 22, at 447-48 (finding that unanimity decreased likelihood of congressional reaction in antitrust cases but not in labor cases);
396. Hettinger & Zorn, supra note 9, at 14, 22 (finding that Congress is less likely to override unanimous decisions);
397. Solimine & Walker, supra note 48, at 447 (finding that unanimous decisions are less likely to be overridden but that differences with split decisions were "not striking").
398. The raw coefficients that generated the probabilities we present in the text are found in Table 5A below. In this model, we again selected the largest group to serve as the baseline (overrides). Because we have so few observations in each category, however, we again remind readers to view these findings as our current best estimates, which are certainly subject to change as Congress provides more data for analytic purposes. For example, the coefficients associated with mixed responses in Table 5 A are grounded on just two cases.
399. We do not include an analysis of the mixed responses because only two of our cases were subject to this type of response. When we estimate the probability of such a response, it is literally 0%, irrespective of whether we hold our variables to the mean or at their maximum.
400. Compare supra Table 4 with infra Table 5.
401. Compare supra Table 4A with infra Table 5A.
402. See supra note 235 (giving coefficients and robust standard errors for this model).
403. See KING, supra note 19, at 137-97 (exploring shared jurisdictions between congressional committees);
404. HARLES M. CAMERON, VETO BARGAINING: PRESIDENTS AND THE POLITICS OF NEGATIVE POWER (2000) (exploring impact of veto bargaining on legislative outcomes);
405. Staudt, supra note 29 (examining strengths and weaknesss of arguments that current system, in which many congressional committees and bureaucracies have jurisdiction over certain policy decisions, should be replaced with hierarchical "integrated" approach);
406. Weingast & Marshall, supra note 118, at 143-55 (stating that legislators bargain to achieve preferred outcomes).
407. See supra Part I.A.
408. See supra note 39 and accompanying text.
409. See supra notes 40-45 and accompanying text.
410. See supra note 15 and accompanying text.
411. See Lowndes, supra note 15, at 222-23 (stating that arguments for creating new specialty court are overwhelming).
412. See, e.g., Edward Heath, Essay, How Federal Judges Use Legislative History. 25 J. LEGIS, 95, 97 (1997) ("The number of statutes has increased tremendously since the New Deal. As a result, issues of statutory interpretation saturate federal court dockets.").