BINDING PRECEDENTS IN BRAZIL: how common law tradition can help bring stability and coherence.

Abstract

This article was elaborated aiming on giving the audience at Cornell Law School a brief scenario of precedent-based decision-making in Brazil, and also offer a critic on Judiciary-elaborate rules. To do so, the article starts by giving context about Brazil that affects precedent-based decision-making (item I), followed by an historical account on the binding force of precedents in Brazil (item II), and, finally, explaining how the legislative reform enacted in 2015 (new Civil Procedure Code) can help bring stability and coherence to Brazil’s case law. As it is clear throughout the article, Brazilian Courts have a tradition of issuing rule-like dockets, which carry with them deep problems including under-and over-inclusiveness, and specially entrenchment by concrete cases. I conclude that the legislative reform is an opportunity for Brazil to form a tradition of following precedents, in which judges will feel obligated to give good reasons to follow or to depart from prior decisions.