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The ABA Journal had an interesting article last month discussing the Supreme Court’s practice of stealth overruling. This is a practice in which the justices avoid expressly overruling precedent, but in effect do overrule it by “gnawing away at old cases without officially declaring them dead.” This is a practice legal researchers should be aware of as they Shepardize/Key Cite cases. Analyzing whether your case is still good law may not be as simple as finding language saying it is overruled or not. As the first commenter to the piece points out, stealth overruling causes problems for practicing attorneys trying to determine the law and properly advise clients.
Dead Precedents: The Justices Overrule, But They Often Do So Stealthily