Critical Tax Theory: Using the Social Background Model to Explain Who Wins Federal Appellate Tax Decisions: Do Less Traditional Judges Favor the Taxpayer?

In Using the Social Background Model to Explain Who Wins Federal Appellate Tax Decisions: Do Less Traditional Judges Favor the Taxpayer? , Professor Daniel Schneider uses empirical research to examine the connections between the taxpayer or the government winning federal appellate tax decisions and the social backgrounds of the judges who decided the cases. Traditional tax scholarship sometimes analyzes who wins federal tax cases, but has not done so empirically. Professor Schneider's article uses statistics, especially logistic regressions, to engage in such an analysis, and does so by taking judges' backgrounds into account. Professor Schneider's database of decisions is drawn from federal appellate decisions from all circuits except the Federal Circuit, which has a somewhat narrower jurisdiction than the other circuits. He samples cases decided between 1996-2000, and includes both published and unpublished opinions in his database. He has collected data about the decisions - e.g., the court where the decision was made, the year of the decision, the judge's role in the decision (majority, concurrence, or dissent), the primary Code section at issue, and who won the case - and about the social backgrounds of the judges who rendered the decisions - e.g., each judge's gender, race, educational background, political affiliation of the appointing president, religion, prior professional experience, and length of the judge's tenure when he rendered the decision. Some of Professor Schneider's conclusions drawn from his descriptive statistics include his observations that a majority of the judges were white, male, drawn from private practice, Protestant, and more likely appointed by Republican than Democratic presidents and educated at nonelite than elite law schools. Black judges, then white ones, decided more in the taxpayer's favor, while Asian judges, then Latino ones, decided more in the government's favor. Aspects of the decisions revealed by the descriptive statistics also suggested the banality of many appeals in federal tax cases. The government tended to win most appeals, tended to win more when the taxpayer had appealed (than had the government), and taxpayer appeals were more likely to be reversed on appeal while government appeals were more likely to be affirmed. All of the tested variables in judges' social backgrounds were correlated with who won, with strong associations between background and the taxpayer winning occurring when a judge had been educated at a less elite law school, was black, was a woman, or had been appointed to the bench by a Democratic president. Professor Schneider concludes by positioning his current findings against the background of results drawn from his three prior articles on similar topics and suggests that one way in which to interpret his results is to conclude that decisions in the taxpayer's favor may be associated with a judge's less traditional background - someone who is a woman, not white, less elitely educated (especially at law school) - and with his appointment by a Democratic president.