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Reconciling Equal Protection And Federal Indian Law, Bethany Berger
Reconciling Equal Protection And Federal Indian Law, Bethany Berger
Faculty Articles and Papers
In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian …
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya
Faculty Articles and Papers
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 …