Nor am I suggesting that every employment discrimination decision that is overridden lives on as a shadow precedent.
The 1990 bill included explicit provisions that would have made all of the overrides retroactive, generally back to the day before the Supreme Court issued the decision that was being overridden. (119) Thus, the Supreme Court's interpretations would never have had legal effect.
The Lorance decision was overridden in the 1991 CRA.
Although the Supreme Court had not previously relied upon Lorance since the 1991 CRA was enacted, lower courts cite the precedent routinely (sometimes without acknowledging in any way that it was overridden) for general propositions regarding when a statute of limitations should be considered to start running.
McLean Credit Union, (214) another decision overridden in the 1991 CRA, stands in sharp contrast to these shadow precedents.
By definition, the application of shadow precedents depends on a showing that a given factual scenario is, at least in some respects, relevantly similar to the overridden case (albeit at least arguably not addressed by the language of the override itself).
I propose two interrelated interpretive conventions that would achieve this objective: (1) a rebuttable presumption that Congress, in overriding a nonconstitutional judicial decision interpreting a statute, rejects the court's interpretation of the preexisting statutory language and thus that "fresh" statutory analysis is required; and (2) a rule that those aspects of the overridden precedent are no longer binding on lower courts.
The first aspect of the proposal--that courts should do "fresh" analysis of the statutory text that triggered the override with a rebuttable presumption that the court's prior interpretation is superseded--builds on the discussion of congressional drafting in the previous subpart that showed it often can be difficult for Congress to comprehensively address every potential application of an overridden precedent.
Thus, a helpful reform would simply be to characterize applications of an overridden precedent that are not explicitly addressed by the statutory override language as congressional "silence" rather than acquiescence.
A presumption against relying on overridden precedent would require courts to do "fresh" statutory analysis, not only of the language of the override but also of the preexisting statutory language.
If the overridden decision itself was a departure from relatively uniform prior judicial or agency interpretations of the statutory language, Congress might reasonably be understood as intending to return to such earlier interpretations.
Second, I propose that enactment of an override should be interpreted as sufficient to supersede relevant aspects of the overridden precedent such that it is no longer binding authority on lower courts.