Prospective Overruling - It's About Time
This article explains how the common law operates to produce retrospective law and how this is in turn premised upon certain jurisprudential assumptions. The author begins by assessing the prospect that ‘prospective overruling’ may provide a solution to the problem of retrospective common law, before providing an argument in support of appellate courts prospectively overruling prior precedents. The article concludes that prospective overruling would balance the impetus to modify the common law, on one hand, with the presumption against enacting retrospective law, on the other.
Publisher: The Otago Law Review Trust Board
Keywords: Retrospective Law; Common Law; the Judiciary; Jurisprudence
Research Type: Journal Article