O EFEITO PROSPECTIVO DO PRECEDENTE DE SCHAUER E O ENFRENTAMENTO DA LITIGIOSIDADE REPETITIVA NO BRASIL

Abstract

The article approaches the prospective effect of the precedent and the use of binding judicial provisions in tackling repetitive litigation in Brazil within the scope of the current Code of Civil Procedure. The research methodology was inductive, with a bibliographic review procedure and observation of consolidated statistical data. The main objective was to answer how Schauer's theory about precedent can contribute to address repetitive litigation in Brazil. The specific objectives of the work were: to understand the precedent for Schauer; to analyze how the prospective effect of precedents came to be; categorize the central point of treatment of legislation for repetitive litigation; study the similarities and differences of legal provisions binding on Schauer's precedent; indicate contributions of the author's theory to our system. It was concluded that the legislator opted for the prospective effect of binding judicial provisions and that the methodological difference in the formation of jurisprudential theses in relation to the generalization of the precedent for Schauer will cause difficulties in maturing the thesis and identifying their premises. Even so, the prospective effect model can be an appropriate instrument for the Brazilian Judiciary when combined with concern about the practical consequences of the factual framework adopted for the formation of binding judgments thinking about future cases.