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

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.

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: https://ssrn.com/abstract=1864236

Sachin S. Pandya (Contact Author)

University of Connecticut ( email )

University of Connecticut School of Law
65 Elizabeth Street
Hartford, CT 06105
United States
8605705169 (Phone)

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