Maria Angela Jardim De Santa Cruz Oliveira & Nuno Garoupa, Stare Decisis and Certiorari Arrive to Brazil: a Comparative Law and Economics Approach

• Citation: Vol. 26 No. 2
• Publication year: 2010

STARE DECISIS AND CERTIORARI ARRIVE TO BRAZIL: A COMPARATIVE LAW AND ECONOMICS APPROACH

Maria Angela Jardim de Santa Cruz Oliveira* Nuno Garoupa**

ABSTRACT

Two important legal reforms in court procedure have taken place in Brazil recently: súmula vinculante (all courts now have to follow the reasoning of the Supreme Court in similar cases) and requisito da repercussão geral (the Supreme Court only hears cases that are of general importance). These two procedural rules respond to a long debate in the Brazilian legal community on how to address court congestion, the heavy workload of the Brazilian Supreme Court, and the role of the higher courts in establishing case law. We discuss the implications of these two important reforms from the comparative perspective (by explaining the similarities and differences with U.S. law, in particular stare decisis and the writ of certiorari) and from a law and economics approach (the likely consequences in terms of incentives for the Supreme Court, the court system, and the litigants more generally).

* Ph.D. Candidate in International Law at the Graduate Institute of International and Development

Studies, Geneva, Switzerland; Visiting Researcher at Harvard Law School (2005); LL.M., Harvard Law School (2004); Postgraduate studies in Economic and Corporate Law, Fundação Getúlio Vargas (2003), Bachelor’s degree in Law, Universidade de Brasília (1993).

** Professor of Law and the H. Ross and Helen Workman Research Scholar, University of Illinois

College of Law, USA; LL.M. University of London (2005); D.Phil. Economics, University of York (1998); M.Sc. Economics, University of London (1994); Bachelor’s degree in Economics, Universidade Nova de Lisboa (1992).

The authors are grateful to João Mello e Souza and the 2012 CLEF (Berkeley) participants. Young Lee

Byun, Melissa Marrero, Maria Oquendo, Nan Sato, and Roya H. Samarghandi have provided excellent research assistance. The usual disclaimer applies.

INTRODUCTION

Two important far-reaching legal developments have taken place in Brazil in the last couple of years. In contrast to the United States and the common law world more generally, the Brazilian legal system lacked a general principle of stare decisis and strong precedent.1 Traditionally, strong precedent is

nonexistent in civil law systems. The lack of strong precedent was particularly significant in Brazil given the inclination of Brazilian judges to be legally creative, and the numerous repetitive cases against governmental actions and measures.2 At the same time, the absence of precedent reduced the power and the influence of the Supreme Court over the entire judiciary.3 Finally, the inexistence of formal precedent was perceived as a reason for court congestion, frivolous appeals, and general delays in dispute resolution.4

Precedent has recently been emulated by the new súmula vinculante.5 Before the existence of súmula vinculante, courts could apply different legal reasoning than that of the Supreme Court.6 Even when courts followed the Supreme Court decisions, the previous system did not bar appeals, allowing

excessive and inefficient appeals, such as strategic appeals with the sole purpose of postponing the enforcement of an unfavorable judgment.7 The new

1 Dana Stringer, Note, Choice of Law and Choice of Forum in Brazilian International Commercial Contracts: Party Autonomy, International Jurisdiction, and the Emerging Third Way, 44 COLUM. J. TRANSNAT’L L. 959, 966 (2006).

2 Id. at 965–66.

1. Organisation for Econ. Co-operation & Dev., OECD Integrity Review of Brazil: Managing Risks for a Cleaner Public Service 87 (2011).

2. Id.

3. Introduced by Constitutional Amendment No. 45, the súmula vinculante is a one-sentence pronouncement issued by the Brazilian Supreme Court, with binding effect to all other courts, which clearly states the interpretation that the Brazilian Supreme Court has given to a constitutional issue after repeated decisions on the same matter. See CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] amend. 45, art. 102, para. 2. For instance, Súmula Vinculante No 12 translates to, “Charging enrollment fees to students in public universities violates article 206, IV, of the Federal Constitution.” S.T.F., Relator: Min. Gilmar Mendes,

   14.8.2008, 2008, DIÁRIO OFICIAL DA UNIÃO [D.O.U.], 22.8.2008, 1, 1. By December 2012, the Brazilian

   Supreme Court had issued thirty two súmulas vinculantes. List of Súmulas Vinculantes, SUPREMO TRIBUNAL FEDERAL, http://www.stf.jus.br/arquivo/cms/jurisprudenciaSumulaVinculante/anexo/Enunciados_Sumula_ Vinculante_STF_1_a_29_31_e_32.pdf (last visited Oct. 22, 2012). See generally Maria Angela Jardim de Santa Cruz Oliveira, Reforming the Brazilian Supreme Federal Court: A Comparative Approach, 5 WASH. U. GLOB. STUD. L. REV. 99, 138–45 (2006) (describing Constitutional Amendment No. 45 and the súmula vinculante in greater detail).

4. Rogério B. Arantes, Constitutionalism, the Expansion of Justice and the Judicialization of Politics in

   Brazil, in THE JUDICIALIZATION OF POLITICS IN LATIN AMERICA 231, 251–52 (Rachel Seider et al. eds., 2005).

5. Id. at 251.

   system has effectively changed the balance of power in favor of the Supreme Court by enhancing its influence in establishing case law.8 In fact, the main criticism of the new súmula vinculante system seems to be that it reduces heterogeneity in legal doctrines across courts, therefore arguably impairing the independence of the lower courts.9

   
   

   At the same time, in contrast to the United States, the Brazilian Supreme Court historically had little control over its docket because there was no equivalent to the writ of certiorari.10 Since 2007, a new requirement of requisito de repercussão geral—which translates to “general interest for admission of extraordinary appeals”—has been in force, which could in principle approximate the writ of certiorari.11 Enabling the Supreme Court to select cases brings up questions about universal access to justice and possible strategic control of the docket.12

   
   

   The legal implications of these two mechanisms, súmula vinculante and requisito da repercussão geral, can be extremely significant in a congested court system and in a system where activism by lower courts has been noticeably problematic in terms of legal certainty and effective application of

   the law.13 However, these mechanisms raise interesting questions about the

   internal balance of power between lower and higher courts. There are important repercussions for the functioning of the Supreme Court, in terms of influence in establishing legal doctrines and quashing inconsistent case law.

   
   

   The Brazilian legal system has been under pressure for its perceived lack of effectiveness. For example, the quality of the court system has been

   
   

6. Organisation for Econ. Co-operation & Dev., supra note 3, at 87–88.

7. See, e.g., Arantes, supra note 6, at 252 (stating that the new súmula vinculante has been criticized and badly received by those sectors that want to use the courts strategically for political struggles or to avoid expensive claims).

8. Cf. id. at 251.

9. Article 102, section 3 of Constitutional Amendment No. 45 provides that “[i]n an extraordinary appeal, the appealing party must demonstrate the general repercussion of the constitutional issues discussed in the

   case, under the terms of the law, so that the [Brazilian Supreme] Court may examine the possibility of accepting the appeal, and it may only reject it through the opinion of two thirds of its members.” CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] amend. 45, art. 102, para. 3 (emphasis added). As a consequence, the law implementing Constitutional Amendment No. 45 limits the Court’s jurisdiction to appeals of general social, economic, political, or legal interest or impact. Lei No. 11,418, de 19 de Dezembro de 2006, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 20.12.2006. If an appeal is not deemed to be of general interest or to have general impact, review is immediately declined by the Court. Id. art. 2, §5.

10. See Arantes, supra note 6, at 251–52.

11. See Organisation for Econ. Co-operation & Dev., supra note 3, at 87.

    documented by the World Bank as non-conducive to economic growth or attracting more foreign direct investment.14 The two new mechanisms, súmula vinculante and requisito da repercussão geral, might be regarded as a serious reform of procedure to promote more efficient courts and improve case law,

    thus enhancing legal certainty.

    
    

    Our paper makes three significant contributions. First, it explains to an English-speaking audience these recent developments that can potentially revolutionize the Brazilian legal system and which, in our view, have not yet attracted the deserved attention among legal comparativists (in fact, there is no good literature in English about these two recent developments).

    
    

    Second, we provide a contextual analysis of these two mechanisms from a comparative perspective, in particular by looking at the American principles of stare decisis and writ of certiorari. Under the traditional common law doctrine of stare decisis, judicial precedent is a source of law, while in civil law, at best,

    case law is regarded as law de facto.15 The doctrine of stare decisis has two

    principles, namely that lower courts are bound by superior courts (vertical stare decisis) and that higher courts are bound by their previous decisions (horizontal stare decisis),16 both for the sake of equality, predictability and legal certainty. In civil law systems, lower courts have freedom to depart from decisions by superior courts.17 However, judicial precedent exists when established by a significant number of decisions. For example, the French jurisprudence constante, the German ständige Rechtsprechung, the Italian

    dottrina giuridica, and the Spanish doctrina juridica create effective precedent and allow appeal to the supreme court of a judicial decision that violates established case law.18

    
    

12. See WORLD BANK & INT’L FIN. CORP., DOING BUSINESS: ECONOMY PROFILE: BRAZIL, 89–94 (2012),

    available at http://www.doingbusiness.org/~/media/FPDKM/...