Detecting the Stealth Erosion of Precedent: Affirmative Action after Ricci
Berkeley Journal of Employment and Labor Law, Vol. 31, No. 2, 2010
48 Pages Posted: 13 Jun 2011 Last revised: 31 Jan 2013
Date Written: March 31, 2011
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.
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