Em homenagem a proteção da confiança e do principio da segurança jurídica, a regra é que o overruling produza efeitos prospectivos. Isto quer dizer que a superação do precedente opera a partir da substituição do precedente para frente (efeito ex nunc). O overrulingse parece com uma revogação de uma lei por outra, ou seja, determinado precedente perde sua força binding, sendo substituído por outro precedente. The non-publication of opinions or unpublished opinions are court decisions that cannot be cited as precedents because the judges issuing the opinion consider the cases to have a lower precedent. Selective publishing is the legal process by which a judge or judge of a court decides whether or not to publish a decision in a journalist. „Unpublished“ federal appeal decisions are published in the Federal Annex. Publication is the power of a court to leave an order or notice already published unpublished. The precedent to be applied or followed is called binding precedent (alternatively metaphorically precedent, binding or binding authority, etc.). According to the doctrine of stare decisis, a lower court must respect the findings of law of a higher court in the context of the appeal in the cases before it.

In the United States of America, the state and federal courts of the United States of America are often geographically distributed among local trial courts, some of which fall within the territory of a regional court of appeals. All courts of appeal are subordinated to a higher court (sometimes, but not always, called the „Supreme Court“). By definition, decisions of lower courts are not binding on the higher courts of the system, any more than decisions of courts of appeal are binding on the district courts of another court of appeal. In addition, courts must follow their own legal statements previously issued in other cases and respect the judgments of other courts in disputes between pending parties who belong to the same pattern of facts or events, unless they have a valid reason to modify these decisions (see case law on a previous judgment of a court constitutes a binding precedent for that court). In law, an enforceable precedent (also known as a binding precedent or binding authority) is a precedent that must be followed by all lower courts under common law legal systems. In English law, it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which assumed the judicial functions of the House of Lords in 2009. In civil and pluralistic legal systems, precedents are not binding, but courts take case law into account. The general principle of ordinary legal systems is that similar cases must be decided in such a way as to achieve similar and predictable results, and the precedent principle is the mechanism by which this objective is achieved. Black`s Law Dictionary or Black`s Law Dictionary defines „precedent“ as „the primacy of law first established by a court in a particular type of case and subsequently used to decide similar cases.“ [2] The common law is a third type of law, along with law (laws and codes promulgated by legislative bodies) and regulatory law (regulations issued by agencies and other executive bodies). It can therefore be said that precedents must be interpreted like any other rule. There is no eficácia do precedente sem o distinguish. É o que acontece também na aplicação da súmula vinculante: é preciso que o juiz aplique essa técnica para ter certeza que determinado caso concreto e se aplica a súmula vinculante.

It should be noted that a high level of motivation is essential for the implementation of the repeal, justifying the real need to overcome the precedent. The capacity for discernment is important – it is not disputed – in order to give flexibility to the system and to ensure justice in the specific case. However, it cannot be taken to the extreme, not least because it violates the principle of isonomy with flagrant injustice. Sem falar no uso indiscriminado do poder de distinguir pode levar a se duvidar, de modo geral, da real vinculação aos precedentes obrigatórios e, conseqüentemente, levar à falência do sistema, o que com certeza, não é o desejado. [4] The second principle, which deals with convincing precedents, reflects the general direction of precedent that a court can use in all its decisions. [6] The precedent or the previous law is a formal source of the creation of law, consists in the fact that it does not result from the law approved by the legislative bodies, but from the solutions adopted in certain cases, including the courts, so that they constitute a kind of doctrine, a paradigm of solution, precisely a precedent. to which all courts or some others will have to adapt in the future. In civil and pluralistic legal systems, such as Scots law, precedents are not binding, but courts take case law into account. In exceptional circumstances, a superior court may set or repeal a mandatory precedent, but it will often attempt to distinguish precedents before striking it down, thereby limiting its scope. Inicialmente cumpre esclarecer que essa técnica do distinguishing é utilizada em um sentido negativo, ou seja, para não aplicação de um precedente. Ela nada mais é do que a comparação do caso concreto e a teseídica (ratio decidendi) do precedente, todavia desse processo se verifica uma distinção entre aquele e o paradigma (ratio decidendi), não ser seguido, conseqüentemente, o precedente.

Three elements are needed for a precedent to work. First, it is necessary for the hierarchy of courts to be accepted and for there to be an effective system of legal information. „A balance must be struck between, on the one hand, the need for legal certainty arising from the binding effect of previous decisions and, on the other hand, the need to avoid unduly restricting the proper application of the law“ (Statement of Practice (Judicial Precedent) of Lord Gardiner L.C. of 1966). However, it remains to be determined whether case law, jurisprudence, is still or usually an official source of law in the countries of the Franco-Roman system. Any court may try to separate your current case from that of a binding precedent in order to come to a different conclusion. The validity of such a distinction may or may not be recognized on appeal. An appellate court may also offer an entirely new and different analysis from that of the lower courts and may or may not be bound by its own previous decisions or, in any event, it may distinguish decisions based on significant differences in facts applicable to the case in question. Or a court may view the case before it as a „first impression“ case that is not subject to precedent.

[8] In all countries where the common law system governs, as in almost every country in the world, a pyramid structure of courts is structured to administer justice and exercise the so-called judicial function.