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NUMERO 19 - 05/10/2016

 The binding precedent in North America

This paper aims at examining the stare decisis in the North American legal system, its operation, flexibility, advantages and disadvantages. In the specialized doctrine, it is often argued that the binding precedents culture provides predictabilityequalityconsistency and stability. Such objectives or advantages, praised in the common law nations, are also held as worthy by the Romano-Germanic legal culture in which Brazil is included. Exactly because of that we have witnessed an increasing concern about precedents not only in the doctrine, but also in the court practice and even the positive law of Civil Law nations. In Brazilian law specifically, several institutions tending to foster the standardization of jurisprudence have been created, for instance, general repercussion in the extraordinary appeal, repetitive appeals in the Superior Court of Justice, and binding abridgements (súmula vinculante), to name the most recent ones. Therefore, this research is justified by the significant practical and theoretical issues originated by the lack of adequate understanding of the binding precedent practice among Brazilian legal professionals. As it is an institution typical of common law, the Anglo-American legal experience has much to teach. In this context, this paper starts presenting the general meaning of the doctrine of stare decisis and its main underlying notions. It then proceeds to a brief analysis of the origins and historical development of that doctrine, first in English law and then in the North American legal system, in order to comprehend the functioning dynamics of the binding precedents in it. Then we mention techniques employed to introduce flexibility in the rigors of the precedent rule, especially in the North American legal setting. After that, we address the distinctions between ratio decidendi and obiter dicta, binding and merely persuasive precedents, and among techniques such as distinguishing, overruling, implied overruling, anticipatory overruling and prospective overruling. Lastly, the advantages and disadvantages of being bound by court precedents are presented. Thus, what is offered is an essentially descriptive glance at the both intricate and thought-provoking theme of mandatory court precedents. Obviously, there is no intent of exhausting the subject. Our modest purpose is restricted to bringing forward information and observations that might encourage debate and serve as a starting point for more in-depth research... (segue)


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