There are mechanisms in place, which provide judges with flexibility when applying precedent. As such, common law can keep up with changes in society, and precedents can avoid becoming outdated.
A judge in a higher court can overrule a precedent established in a lower court when a similar case comes before the higher court. The higher court is not bound to follow the lower court’s precedent and therefore may create a new precedent to be followed by all lower courts in the same hierarchy.
Reversing occurs when one case has two decisions. A judge in a higher court may choose to reverse the original decision made on appeal. Therefore, the appellate court establishes a new precedent.
Distinguishing occurs when a judge shows that there are significant differences between the facts in the case before the court and the facts of the precedent setting case. Therefore, the court does not have to follow the precedent setting case. This can lead to the creation of a new precedent.
Courts on the same level as a precedent-setting case are not bound to follow their own decisions. Therefore, they can create a new precedent if the court disapproves of the previous, precedent-setting decision. However, this leads to conflicting precedents, which a higher court may need to resolve in the future. Additionally, a lower court can express its disapproval of a higher court’s precedent, but must still follow it.
Difficulties in applying past decisions
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