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Ferdi

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Structure of judge decisions
« on: February 02, 2009, 03:23:38 PM »
Hello,

My name is Ferdinando. I´m a Brazilian Judge and I´m trying to do a comparison between US and Brazilian´s judicial system, focused in what you call "stare decisis".

First, I have to say that a significant part of the Brazilian´s constitutional law is very similar to what you have in the US, simply because it was directly inspired by it.

That said, I jump to my question.

Here in Brazil any decision made by a judge has this structure:

1.Summary -“relatório” = the judge tells the story of the demand since it´s beginning.

Ex:  Joe crashed Ann´s car into a wall.


2. Groundings - “fundamentação” = the judge states the legal basis for the decision he´s about to announce.

Ex: There is law that says that any damage must be paid by the one who caused it.

3. Disposition - “Dispositivo” = the most important part of a decision, since it´s the only one with bindding effects.


Ex: Hence, I condemn Joe to pay $400,00 to Ann, in seven days, otherwise this value will be increased by $50,00 a day, until it reaches $2000,00.


Ok. That´s how we do it here. But over there things are not very clear to me.

1.What is the structure?
2. What part of the decision binds other judges? (lets assume the decision is issued by a supreme court)
3. What is the “holding”? Is it the same as the “Dispositivo”?

I thank you for any help.

NeverTrustKlingons

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Re: Structure of judge decisions
« Reply #1 on: February 02, 2009, 04:25:14 PM »
The US doesn't have the formal structure that you'll find in some continental systems (and, apparently, Brazil).  Some judges may use a formal sub-heading structure as personal preference, but that's all it is.

As to your question about dicta / holding, the entire case is binding (judges don't write things without a reason), but if you want to ignore something you classify it as 'dicta' when you write your brief or opinion.  In my opinion it's not a very useful way to look at things, and some law students try to trim every decision down to holding vs. dicta which is usually useless.

To avoid this some judges/courts use WE HOLD THAT _____, WE DO NOT HOLD THAT or WE DO NOT REACH THE ISSUE OF to simplify matters and avoid the problem of others classifying things as "dicta."
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fertsru

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Re: Structure of judge decisions
« Reply #2 on: February 04, 2009, 12:34:40 AM »
Here in Brazil any decision made by a judge has this structure:

1.Summary -“relatório” = the judge tells the story of the demand since it´s beginning.

Ex:  Joe crashed Ann´s car into a wall.


2. Groundings - “fundamentação” = the judge states the legal basis for the decision he´s about to announce.

Ex: There is law that says that any damage must be paid by the one who caused it.

3. Disposition - “Dispositivo” = the most important part of a decision, since it´s the only one with bindding effects.


Ex: Hence, I condemn Joe to pay $400,00 to Ann, in seven days, otherwise this value will be increased by $50,00 a day, until it reaches $2000,00.


Ok. That´s how we do it here. But over there things are not very clear to me.

1.What is the structure?
2. What part of the decision binds other judges? (lets assume the decision is issued by a supreme court)
3. What is the “holding”? Is it the same as the “Dispositivo”?

I thank you for any help.

Actually I think it is somewhat similar. However, it might depend on the decision. If it is a simple matter where parties come with motions for a judge to decide, they usually also provide proposed orders. The judge picks one side and uses the proposed order with minor modifications if any. If it is a serious decision by appellate or supreme court, then judges usually write their own opinions. This kind of decision is likely to have structure similar to yours. Brief of the facts, matter at issue, judge's reasoning, and the final decision. If it is a monetary judgment, the judge usually doesn't stipulate the interest rate of the judgment, there are separate rules that govern the interest rate, when and how to be paid. Older decisions are not as structures as newer ones.

Holding is a logical explanation of the action taken by the court in light of the substantive issues and procedural history of the case.

Usually the reasoning, where the judge made some points of law, or the holding is what you would use as precedent for later cases.
Per aspera ad astra.