William & Mary Law Review Online


In Gamble v. United States, the Supreme Court reaffirmed the 170-year-old dual-sovereignty doctrine. That doctrine permits both the federal and state governments—as “separate sovereigns”—to each prosecute a defendant for the same offense. Justice Thomas concurred with the majority opinion in Gamble, but wrote separately to reject the traditional stare decisis formulation. In particular, the factors the majority used to evaluate stare decisis, in his view, amount to nothing more than marbles placed subjectively on either side of the stare decisis balancing scale. He would have preferred, instead, an inquiry into whether the precedent was demonstrably erroneous as an original matter, and he dismissed the stare decisis factors as irrelevant to that question. Justice Thomas may be right to criticize the subjectiveness of a multifactor balancing approach to stare decisis. Yet even if doubt about the factors is warranted, this Comment contends that certain factors may still be relevant to Justice Thomas’s inquiry into precedent’s correctness as an original matter. In making this case, the Comment divides the stare decisis factors into three groups: a priori factors—those factors that analyze a precedent for its original correctness—a posteriori factors—which explore the effects of precedent’s real-world application, and hybrid factors—which may be employed in either an a priori or a posteriori manner. When factors are used in an a priori fashion, this Comment contends that they remain useful as proxies to show whether precedent was right or wrong as an original matter. On that basis, some of the factors may help jurists decide whether precedent falls within “the realm of permissible interpretation,” or, in the alternative, whether the precedent is “demonstrably erroneous.” It follows, therefore, that even under Justice Thomas’s stare decisis approach, in which all “demonstrably erroneous precedent” would be corrected “regardless of whether other factors support overruling the precedent,” certain factors remain material to his ultimate question— whether the past precedent is within “the realm of permissible interpretation.”