After the Override: An Empirical Analysis of Shadow Precedent

58 Pages Posted: 25 Mar 2015 Last revised: 14 Jun 2017

See all articles by Brian J. Broughman

Brian J. Broughman

Indiana University Maurer School of Law

Deborah A. Widiss

Indiana University Maurer School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: January 1, 2017

Abstract

Congressional overrides of prior judicial interpretations of statutory language are typically defined as equivalent to judicial overrulings, and they are presumed to play a central role in maintaining legislative supremacy. Our study is the first to empirically test these assumptions. Using a differences-in-differences research design, we find that citation levels decrease far less after legislative overrides than after judicial overrulings. This pattern holds true even when controlling for depth of the superseding event or considering only the specific proposition that was superseded. Moreover, contrary to what one might expect, citation levels decrease more quickly after restorative overrides—in which Congress repudiates the prior Supreme Court decision as incorrect—than after overrides intended to update or clarify the law. This suggests that ongoing citation of overridden precedents, what we call shadow precedents, may be driven more by information failure or ambiguity than by ideological disagreements between the branches of government.

Keywords: overrides, precedent, citation patterns, separation-of-powers, legislative supremacy

Suggested Citation

Broughman, Brian J. and Widiss, Deborah A., After the Override: An Empirical Analysis of Shadow Precedent (January 1, 2017). USC CLASS Research Paper No. 15-12. Available at SSRN: https://ssrn.com/abstract=2584048 or http://dx.doi.org/10.2139/ssrn.2584048

Brian J. Broughman (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Deborah A. Widiss

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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