Stare Decisis and Certiroari Arrive to Brazil: A Comparative Law and Economics Approach

Two important legal reforms in court procedure have taken place in Brazil recently: simula vinculante (all courts now have to follow the reasoning of the Supreme Court in similar cases) and requisito da repercussao geral (the Supreme Court only hears cases that are of general importance). These two procedural rules respond to a long debate in the Brazilian legal community on how to address court congestion, the heavy workload of the Brazilian Supreme Court, and the role of the higher courts in establishing case law. We discuss the implications of these two important reforms from the comparative perspective (by explaining the similarities and differences with U.S. law, in particular stare decisis and the writ of certiorari) and from a law and economics approach (the likely consequences in terms of incentives for the Supreme Court, the court system, and the litigants more generally)