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63 Drake Law Review 919 (2015)


Congress’s ability to override judicial opinions that interpret statutes is generally understood as an important aspect of maintaining legislative supremacy. In a series of articles, I have challenged the validity of this assumption by showing that courts often continue to rely on overridden precedents—what I have called shadow precedents. My earlier work explores instances in which it was unclear or debatable whether the override or the prior precedent should control. This article further documents such ambiguities, but its primary objective is to highlight examples of ongoing reliance on shadow precedents where it is unquestionably improper. It suggests, however, that citation of shadow precedents may often stem from information failure, including poor briefing by counsel, rather than courts’ willful disregard of legislative mandates.

The article, written for a symposium on the Americans with Disabilities Act (ADA), examines implementation of the ADA Amendments Act of 2008 (ADAAA). The ADAAA, a broadly bipartisan bill, was intended to supersede Supreme Court decisions that had set a very stringent standard for what impairments qualified as a disability. The ADAAA explicitly “rejected” the reasoning in these decisions; amended the ADA’s substantive provisions; and instructed courts to interpret the standard “in favor of broad coverage.” Many lower courts are properly implementing the revised standard, and the overall number of citations to the superseded decisions has dropped sharply. But this article identifies numerous post-ADAAA cases in which courts follow the old precedents for propositions that were undeniably superseded. Mistakes are particularly prevalent in cases alleging discrimination because one is “regarded as” having a disability. Even though the ADAAA was an unusually strong and clear override, it has failed to change fully the law on the ground.