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I did a deep dive into a supposedly "silently overruled" case to see if @questauthority.bsky.social was right that identifying such cases from the texts of later opinions themselves was "intractable." katelynsills.com/law/indicato...

katelynsills.comIndicators of Silently Overruled CasesA small case study of Warner Bros. v. CBS (the Sam Spade case): can the texts of later opinions tell you when a court has quietly moved on?
The Questionable Authority@questauthority.bsky.social

And they're bad at those things for *structural reasons.* It's an intractable problem, at least so far, and it's likely to remain so, because it requires a lot that is very much beyond the text of the documents.

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This is a study of 1, so the usual caveats apply. There were also some problems with the premise: the case was never highly cited. It is also not currently silently overruled. But there are some indicators that could be useful, such as a later opinion calling the test in the case "arguably dicta"

You are misstating what I said. I agreed that there are likely to be indicators in the text. I don't think there are *reliable* indicators. So a study of one is, at least from my perspective, not particularly helpful. bsky.app/profile/ques...

The Questionable Authority@questauthority.bsky.social

Indicators, sure, sometimes. Reliable ones, not so much. I've seen sentences that start with the words "We hold that..." which, when you carefully analyze the opinion, turn out not to be a holding at all. There's one case I keep looking at that says expressly "we don't overrule case X," but also...

That said: 1: I'm still fine saying that Warner v. CBS has been silently overruled. If it hasn't, then it's been functionally abandoned, or maybe 'treated as an irrelevant inconvenience.' It's not taken seriously as a test, even if the occasional court makes handwaving gestures to the contrary.