Special Appeal N° 1.011.581/RS, (2008) Superior Court of Justice

The judiciary and the Brazilian appeals system, 2023

In this article, it will be possible to gain a broad understanding of the Judiciary and how the appeals system operates within the democratic rule of law, since it is not possible to understand the rules of the Code of Civil Procedure. appeals, without first mastering the judicial process that surrounds Brazilian legal bodies. Thus, recognizing how lawyers must master and how they can The use of the most varied types of appeals to avoid procedural disagreements is of the utmost importance on the path of the Law. Sometimes, issues that are appropriate for the filing of appeals are left aside by the lawyers themselves and, depending on the case, if there is partiality on the part of the judge, the opposing party is harmed by the lawyer's lack of mastery of the other resources present in the field of law. Therefore, this work seeks to demonstrate how the resources established in the Code of Civil Procedure are linked to the Judiciary and how they relate to each other.

Balkinization [blog de direito focado em questões constitucionais criado por Jack Balkin, professor de direito constitucional dos EUA na Yale Law School]. Publicado em 29.09.2023. Disponível em: balkin.blogspot.com, 2023

Deference is not a widespread expression in Brazilian administrative law. But the argument that the Judiciary must observe many limits when acting as controller of public administrations is, in fact, very old in Brazil. It is closely related to the country's single jurisdiction system-a choice made in 1891, under the influence of North American law, and still in force today. Thus, Brazilian public law rejected the French system of Administrative Justice that separates administrative law from general law. Brazil´s legal tradition assumes that judging is independent of making and executing public policies, meaning that judges are not allowed to step into the role of public administrators.

O IBGE agradece aos colaboradores abaixo relacionados, que com seus textos analíticos e comentários enriqueceram o conteúdo desta obra.

In comparative perspective, the control of constitutionality is one of the most apparent faces of the relations between judiciary -through Superior Courts -executive and legislative branches. In judicial review, Courts interact with parliaments and governments affecting decision-making and interfering in the development and implementation of policies. In Brazil, between 1988 and 2014, 65% of the Direct Actions of Unconstitutionality (ADI) challenged state rules, not federal ones. In the same period, approximately 25% of all cases were proposed by State Governors or State Legislatures. In spite of the recent improvement in the literature examining the relationship between judiciary and legislative branches in Brazil at the federal level, an empirical gap still exists when sub-national controversies are focused. How does the Brazilian Supreme Court decide cases about state rules? What are its impacts on sub-national policies? To discuss the first question, this paper empirically analyses all ADI cases proposed against state rules and their decision patterns compared to other classes of cases. Despite the need of further research, the central claim is that the existing differences on outcomes between state and federal issues places the Supreme Court as a potential veto point against state majorities forward the interests of the Union, and also as an actor that can bring informational gains to decision making, with impacts on the country's federative organization.

Nuove AutoNomie N.1/2018 - issn 1122-228x, 2018

This article analyzes the new interpretation and application of law introduced by the centrality of human and fundamental rights in the second half of the twentieth century, which led the preponderance of the judiciary in moral and political decisions of the State to assume the role of judge-made-law, which is traditional to Common Law systems. When the law is interpreted, the rule only exists in practice; therefore, legal security can no longer be found in written texts. This work also advocates the use of the doctrine of stare decisis, which, in turn, is compatible with Dworkin’s model of law as integrity, for the guarantee of legal certainty, predictability and stability of judgments. For this reason, the work brings the systems of civil law and common law within the constitutional jurisdiction, particularly in the constitutional review based on human or fundamental rights. To support the thesis, the work indicates that the material fundamentality of human rights has moral content and serves as a bellwether for judicial review in both systems, whether implied or not in a written constitutional document. Additionally, from the study of Dworkin’s “law as integrity”, this work concludes that it is possible to adopt the doctrine of stare decisis and apply the value of integrity in adjudication in the Brazilian Constitutional Jurisdiction, which will ensure consistency, stability, predictability and judicial security of its decisions. Key words: Civil Law andCommon Law; Judicialization of Politics; Contemporary Society; Brazilian Constitutionalism; Human Rights; Integrity; Certainty in Law.

SSRN Electronic Journal

This paper aims at discussing the influence of the Court of Justice of the European Union (CJEU) case-law on Brazilian jurisprudence or legislation. First, it presents an overview of the Brazilian legal system as well as of the functioning of its Judiciary. Then the paper analyses the dialogue between Brazilian courts, mainly the Supreme Court, with supranational and foreign courts, indicating and discussing some cases and legislation where foreign jurisprudence is mentioned by Brazilian courts or laws. The paper concludes that there is no tradition in the Brazilian Judiciary of citing international and foreign jurisprudence. Moreover, although so far there has not been much influence of CJEU case-law on Brazilian jurisprudence or legislation, there is a great potential for CJEU influence on Brazilian Supreme and Superior courts jurisprudence as well as on the Brazilian national parliament decision-making process in the coming years, especially on issues relating to the Information Society.

Revista da Faculdade de Direito do Sul de Minas , 2022

Despite the reference to the Unconstitutional State of Affairs (USoA) in the trial of the precautionary measure of ADPF nº 347, the Supreme Federal Court of Brazil did not clarify which criteria should guide its application. Consequently, some problems may arise, such as its weakening, due to the possible indiscriminate use; lack of internal and external coherence in judicial decisions, since there are no uniform criteria of applicability, there is a risk that each magistrate will understand this practice of different way; and legal uncertainty, of not knowing precisely when the USoA may or may not be used. Thus, the purpose of this paper is to present the importance and the difficulties of establishing objective criteria for the use of USoA in future structural litigation. Furthermore, in order to contribute to the minimization of the identified problem, some initial criteria for the use of USoA are proposed, such as the exceptionality of the problem faced and the severity of the structural violation.

Panorama of Brazilian Law, 2017

International law, which main sources are agreements and international conventions, is increasingly present in internal affairs in such way that it is difficult to imagine an area of national law which has not been affected in some way by standards imposed by agreements. But how and to what extent international law will be applied internally will depend on the way in which States comply with their international obligations. Therefore, it is essential to know how States bestow domestic legal effect to their agreements. The theoretical question about the relationship between domestic law and international law is usually presented on the basis of dualistic (or pluralistic) and monistic theories, that can not, however, comprehensively cover all aspects of this relationship. The Constitution of the Federative Republic of Brazil recognizes, yet indirectly, international agreements as part of domestic law, but left important aspects related to its application without answers. Thus, the Brazilian judiciary has faced critical issues relating to the impact of agreements in domestic law, particularly regarding its duration, effects and hierarchical position. Despite the Brazilian judicial performance, legal uncertainties regarding the matter persist, which will be exposed in this article.

SALGADO, Eneida; GABARDO, Emerson. The Role of the Judicial Branch in Brazilian Rule of Law Erosion. Revista de Investigações Constitucionais. Curitiba, vol. 8, n. 3, p. 731-769, set./dez. 2021.

O artigo sintetiza as estatísticas judiciárias oficiais brasileiras mais recentes, além de apresentar suas principais decorrências em termos das políticas judiciárias. The article summarises the most recent Brazillian oficial judicial statistics, and its main policy implications.