Second Thoughts on “One Last Chance”?

Abstract

The Supreme Court’s recent decision in Janus resolved a major First Amendment question, but the
Court’s treatment of precedent is arguably even more important, as Justice Elena Kagan’s forceful
dissent indicates. In short, the Court held that its own recently expressed misgivings about a
precedent contributed to the justifiability of overruling the precedent. This Article explores Janus’s
implications in light of the Court’s apparent adherence to “the doctrine of one last chance,” which
requires the Court to give advance notice of its willingness to issue disruptive decisions. Aptly
enough, the doctrine is Janus-faced in that it is both restraining and empowering. And there are
plausible reasons for adhering to at least some version of the doctrine, despite the serious concerns
that Kagan has raised.

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By uclalaw