The hermeneutical capture of precedent: informational asymmetry and bargaining power of large litigants from the perspective of economic analysis of law

Abstract

This article investigates the formation of judicial precedents from the perspective of Economic Analysis of Law, examining the phenomenon of hermeneutical capture as a hypothesis of structural governance failure in the judicial market. It starts from the premise that precedents operate as legal public goods, endowed with diffuse effects and the capacity to guide expectations, reduce transaction costs, and promote legal certainty. However, in contexts marked by repetitive litigation and informational asymmetry, their formation can be influenced by habitual litigants, generating negative externalities and distributive distortions. The research, of a theoretical and qualitative nature, adopts a deductive-analytical method, based on a specialized bibliographic review and systematic analysis of the precedent regime of the CPC/2015. It argues that jurisprudential stability, although essential to predictability, can become a mechanism for perpetuating inefficiencies when not accompanied by adequate interpretative governance. By articulating precedent theory and dynamic efficiency, the study proposes that instruments such as distinguishing, overruling, and temporal modulation function as institutional mechanisms of discapture, capable of restoring integrity, economic rationality, and decisional legitimacy. It concludes that protecting precedent against capture dynamics is a necessary condition for preserving its nature as a public good and ensuring institutional efficiency in the justice system.