  Despite its attractions, the ‘underlying principles’ account faces three major difficulties: (i) the scope of distinguishing; (ii) accounting for the role played by rationes; and (iii) maintaining the distinction between precedent and analogy. The initial difficulty arises from the fact that distinguishing is not restricted to the application of the justification provided by the earlier decision. Any good argument can provide the basis for distinguishing, for example by showing that the novel facts in the later case provide considerations which outweigh the original justification: it is not that the original justification is inapplicable to the novel facts, it is simply that those facts raise additional considerations that are more compelling. So later courts go beyond what was done in the earlier decision in determining whether to distinguish the later case.