O anticipatory overruling no sistema jurídico brasileiro

Abstract

The characterization of the Brazilian system of precedents has aroused great interest amid the local doctrine, generating debates invigorated by the publication of the Federal Code of Civil Procedure of 2015. This is a key milestone in the movement towards approximation between the western traditions of the common and civil law. Among us, the highlight has been the binding pronouncements of the apex courts, directors of the whole society and subordinate judicial bodies. However, some have pointed to a tendency of emptying the role of the parties and judges acting in ordinary instances. In this context, the present work has as its object the study of the grafting, in the Brazilian system, of American techniques of handling superior precedents by the intermediate courts, culminating in the controversial “anticipatory overruling”. Artifices of this kind empower such actors and can contribute to the daily rationalization and development of case law. However, the thoughtless transfer of foreign legal technologies can cause aberrations that are incongruous with the local procedural framework. Therefore, the work starts from the launch of the comparative premises between the US and Brazilian precedent models, used in the critical analysis of the national appropriation of these techniques (including calling dicta, distinguishing, and criticizing). Finally, the study reaches the examination of the compatibility with the national system of anticipatory overruling – the youngest and boldest maneuver, which only recently began to be appropriated by the local courts -, establishing parameters for its proper application in Brazil.