M. Burke Craighead (Harvard University – Harvard Law School) has posted Note, The Paradox of Precedent About Precedent (Harvard Law Review, Volume 138, No. 3, p. 797, 2025) on SSRN. Here is the abstract:
This Note argues that precedent about precedent is unique within the system of stare decisis because precedent about precedent is not entitled to the stare decisis weight to which it, as precedent about precedent, would entitle all other cases. Part I further sketches out the notion of precedent about precedent and employs Dobbs and Casey as examples of precedent about precedent in practice. Part II then argues that precedent about precedent’s unique status poses a paradox. Finally, Part III explores some of the problems that develop within any theory of precedent about precedent because of the implications that flow from its paradoxical nature.
A very interesting student note. Recommended.