SAMPLE REVIEW FOR THE NUALS LAW JOURNAL TEST

This article titled “The Paradox of Precedent About Precedent” discusses the concept of “precedent
about precedent”—the body of case law that determines how courts approach the overruling of
past decisions. By focusing on key supreme court cases such as Dobbs v. Jackson Women’s Health
Organization and Planned Parenthood of Southeastern Pennsylvania v. Casey, the author(s) discusses a
paradox: precedent about precedent does not apply to itself. The author(s) argue that when a court
considers overruling a precedent about precedent, it cannot rely on that precedent’s own
framework to evaluate its validity. This article, published in the Harvard Law Review, is well-
structured, thoroughly researched, and consistently engages with existing literature. The editorial
suggestions provided below are intended to refine this already well-developed piece, enhancing
clarity, logical coherence, and readability. Due to the nature of these suggestions, they are purely
directory and may or may not be adopted by the author(s).

REGARDING CONTENT:

(a) The article discusses a niche yet a very important issue in legal theory on whether courts are bound
by their own framework for evaluating precedent when reconsidering that framework itself. This
is a novel contribution to debates on stare decisis, particularly in the wake of Dobbs. However, while
the article convincingly establishes the existence of the paradox, it does not fully discuss its broader
implications. For instance, would recognizing this paradox formally change how courts approach
stare decisis? Could this analysis be extended beyond the Supreme Court to lower courts? A brief
discussion on how other jurisdictions, such as the United Kingdom or Canada, treat precedent
about precedent would also add depth.
(b) The discussion of Ramos v. Louisiana and the Marks rule (p. 810, para 2) is helpful but could benefit
from greater clarity. The article suggests that Ramos attempted to redefine the Marks rule without
acknowledging the paradox this creates. However, the argument is somewhat dense and assumes
familiarity with the intricacies of Marks. The author(s) might consider a brief summary of Marks
before analyzing its modification in Ramos.
(c) The article argues that precedent about precedent does not receive stare decisis protection when
being reconsidered (p. 805, para 1). While this is a compelling argument, it does not fully address
whether any precedent about precedent has ever been reaffirmed rather than overturned.
Discussing cases where courts have opted to retain existing precedent about precedent would add
balance to the argument. For instance, Kimble v. Marvel Entertainment, LLC,(2015), the Supreme
Court explicitly reaffirmed its prior decision in Brulotte v. Thys Co.,(1964), despite recognizing that
the earlier case’s reasoning was questionable. The Court stated that stare decisis in statutory
interpretation cases should be particularly strong, emphasizing the importance of stability in legal
frameworks. Notably, the Court declined to overrule its precedent on how precedent should be
treated, reaffirming the principle that long- standing statutory interpretations should not be lightly
disturbed. This is an example of the Court opting to retain precedent about precedent, reinforcing
the traditional understanding of stare decisis.
(d) The article assumes that courts must necessarily reject precedent about precedent when
reconsidering it, arguing that such precedents are not entitled to the same stare decisis protection
as substantive rulings. However, some scholars argue that courts can adopt a more flexible
approach—acknowledging the paradox while still giving weight to prior methodological
precedents. For instance, Randy Kozel argues that stare decisis should function as a stabilizing
force, with courts presuming prior methodological frameworks to be valid unless there is a strong
reason to depart from them. Similarly, Richard Re’s “Precedent as Permission” model suggests
that precedent about precedent can be advisory rather than mandatory, allowing courts to adjust
methodologies without entirely discarding them. Several Supreme Court cases demonstrate this
more flexible approach. In Kisor v. Wilkie (2019), the Court reconsidered Auer deference but did
not reject its prior methodology entirely. Instead, it narrowed its application while retaining its core
principles. Likewise, Planned Parenthood v. Casey (1992) represents an instance where the Court
modified a precedent’s reasoning without abandoning it completely, preserving Roe v. Wade while
adjusting the standard of review.
By engaging more explicitly with such perspectives, the article could provide a subtler account of
how courts actually handle the paradox of precedent about precedent in practice. It could add a
section demonstrating that precedent about precedent is not always discarded when reconsidered.
Rather, courts sometimes refine or modify prior methodologies, preserving legal
 stability while allowing for doctrinal evolution. A discussion of such cases would provide balance
to the article’s argument and acknowledge that precedent about precedent, while unique, does not
always require outright rejection.
(e) The section on individual Justices’ approaches to precedent (p. 813, para 3) is well-researched,
particularly the discussion on Justice Thomas’s view in Gamble v. United States. However, the
author(s) does not discuss whether other Justices have proposed alternative frameworks for
precedent about precedent. Herein, it is suggested by the editor(s) that the author(s) could ass a
discussion on Chief Justice Roberts’s or Justice Kavanaugh’s views on the same could have
provided a more comprehensive picture.
(f) The article effectively explains the theoretical paradox but does not fully address its implications
for lower courts. Since federal appellate and district courts must follow Supreme Court precedent,
a discussion on whether lower courts are bound by precedent about precedent—especially when
the Supreme Court itself is reconsidering it—would be valuable. The author(s) could include an
example where lower courts struggled with stare decisis because of conflicting Supreme Court
signals.

REGARDING LANGUAGE, STYLISTIC ELEMENTS, AND STRUCTURING

(a) The article is well-written and employs a precise legal language, making the discussion appropriate
for a specialized audience. However, certain sections could benefit from greater clarity, particularly
where complex legal theories are introduced without sufficient explanation. One area where
readability could be improved is the discussion of the Marks rule and its treatment in Ramos v.
Louisiana. The explanation assumes a level of familiarity with fractured-opinion stare decisis that
not all readers may possess. A more structured breakdown of how Marks functions before delving
into its modification in Ramos would improve accessibility. Similarly, the discussion of how Dobbs
overturned Casey’s framework could be made clearer by distinguishing between the various
components of stare decisis that were rejected (such as reliance interests and judicial legitimacy
considerations).
(b) In some instances, full case names are provided, while in others, they are abbreviated without a
clear pattern. For example, Dobbs v. Jackson Women’s Health Organization is sometimes referred to in
full and at other times as simply Dobbs. A consistent approach should be adopted, where full case
names are used at the first mention and then consistently abbreviated thereafter.
(c) Some citations provide full parentheticals explaining the case’s relevance, while others simply list
the case name. Consistency in citation formatting would enhance readability and ensure
uniformity.
(d) While the article makes a compelling case for why precedent about precedent is uniquely
paradoxical, it does not sufficiently engage with alternative perspectives. Like mentioned earlier by
the editor(s), a dedicated section discussing cases where courts have retained precedent about
precedent would provide a more balanced view.

On the whole, the piece does a commendable job. The language and style suggestions are purely for
conformity and consistency purposes. Therefore, this piece, passes the threshold for publication,
deeming its verdict a “Pass”.