Abstract

http://ssrn.com/abstract=1864236
 


 



Detecting the Stealth Erosion of Precedent: Affirmative Action after Ricci


Sachin S. Pandya


University of Connecticut - School of Law

March 31, 2011

Berkeley Journal of Employment and Labor Law, Vol. 31, No. 2, 2010

Abstract:     
This paper presents a method for detecting stealth precedent erosion, i.e., when an appellate court majority deliberately writes the opinion in case y to reduce the scope of its precedent x, but does not expressly refer to precedent x in the opinion. Applying this method, the paper provides a strong basis for concluding that in Ricci v. DeStefano (2009), a United States Supreme Court case decided under Title VII of the Civil Rights Act of 1964, the Court majority eroded by stealth United Steelworkers of America v. Weber (1979), and Johnson v. Transportation Agency (1987), both cases that read Title VII to permit employers to consider race or sex in employment decisions pursuant to affirmative action plans. In so doing, the paper contributes to research on the stare-decisis norm, fills a gap in the growing literature on the Ricci case, and identifies a critical development in the judicial treatment of employer affirmative action plans in the United States.

Number of Pages in PDF File: 48

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Date posted: June 13, 2011 ; Last revised: January 31, 2013

Suggested Citation

Pandya, Sachin S., Detecting the Stealth Erosion of Precedent: Affirmative Action after Ricci (March 31, 2011). Berkeley Journal of Employment and Labor Law, Vol. 31, No. 2, 2010. Available at SSRN: http://ssrn.com/abstract=1864236

Contact Information

Sachin S. Pandya (Contact Author)
University of Connecticut - School of Law ( email )
65 Elizabeth Street
Hartford, CT 06105
United States
(860) 570-5169 (Phone)
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