Information on Legal Precedent as an Instrument to Ensure Legal Certainty
for Citizens
by Eduardo
ARRUDA ALVIM, Ph.D. and Master of Law and Professor of Civil Law at the
Pontificate Catholic University of São Paulo – PUC/SP.
The purpose of this brief study
is to examine legal precedents as enshrined in the 2015 Brazilian Code of Civil
Procedure, in addition to the importance of the principle for ensuring legal
certainty for citizens.
In
fact, transparency in the administration of justice is only possible if the
citizen is able to ascertain or have some idea as to the future of a case, in
the event he or she opts to resort to the Courts.
To
investigate this judicial mechanism, let us begin by providing a brief outline
of legal precedents and their regulation under the 2015 Brazilian Code of Civil
Procedure. We will then turn to an examination of some of the specific
modalities of precedent identified.
One of the main causes for the slowness of the
Brazilian justice system consists in the countless number proceeding currently
pending before the Courts.
More than that, a large portion of current proceeding
address matters and issues already ruled on previously, giving rise to
innumerable additional actions.
In the 1960s, the Federal Supreme Court was deemed to
be in crisis, as the number of petitions entered was far higher than those
effectively settled. This led to an increase in the number of proceedings for
which a judicial decision was pending, resulting in a backlog in the Federal
Supreme Court.
At the suggestion of Minister Victor Nunes Leal, followed by Pedro Chaves, Evandro
Lins e Silva, and Gonçalves de Oliveira, in 1963 Binding Judgments of
principal decisions began to be published, with a view to consolidating the key
rulings of the Federal Supreme Court.
Subsequently, the Petition for Relevance was
instituted through Amendment to article 308 of the Internal Rules of Procedure
No. 3 of 1975, which modified the Internal Rules of Procedure of the Federal
Supreme Court, aimed at ensuring only Extraordinary Appeals would be heard by
the Court if the issue at hand was deemed relevant.
The 1988 Federal Constitution, for its part, created
the Superior Court of Justice, for purposes of alleviating some of the load
placed on the Federal Supreme Court. In fact, creation of the Superior Court of
Justice resulted in a division of jurisdictional authority previously
concentrated exclusively in the Federal Supreme Court. With this change, the
Superior Court of Justice was assigned the task of standardizing and issuing
final decisions on matters relating to federal law throughout Brazil.
However, even with the creation of the Superior Court
of Justice, the problem of the high number of cases entered daily before the
Court persisted. By way of example, in the period January to August 2016, a full 313,716 cases were distributed in the Superior Court
of Justice.
Following creation of the Superior Court of Justice in
1988, other instruments were development in an effort to stop the filing of
cases with Brazil’s High Courts.
Constitution Amendment No. 45 of 2004 established the
standard of broad repercussion, which must be demonstrated by the appellant at
the time the extraordinary appeal is filed before the Federal Supreme Court,
pursuant to article 102, § 3, of the Federal Constitution. In addition,
Constitutional Amendment No. 45 created the Binding Judgment, in accordance
with article 103-A of the Federal Constitution, a binding provision erga omnes, as the
name suggests.
Subsequently, Law No. 11,418 of 2016 introduced
articles 543-A, 543-B, and 543-C in the 1973 Brazilian code of civil Procedure,
authorizing the High Courts to rule on appeals involving matters already heard.
In addition to these instruments, the Brazilian legal
system provided – and still provides – for class-action suits. However, the
class-action suit system has proved inadequate for purposes of reducing the
caseload.
Some factors, including limits on class-action suit
filings (article 1, sole paragraph, of Law No. 7,347/1985); the absence of a
specific number of associations to protect given groups; the possibility of
re-litigating matter heard by the Courts in individual cases in which the
decision on the class-action suit was not beneficial to all parties or
substituted groups (secundumeventum eventum litis); territorial limits of decisions (article 16 of
Law No. 7,347/1985), in addition to lack of adequate representation.
With
enactment of the New Brazilian Code of Civil Procedure, procedures were
instituted requiring that bodies of the judicial branch apply decisions handed
down by higher court judges.
The
explanatory statement of the Brazilian Code of Civil Procedure on this matter
refers expressly to the need to confer efficiency and speediness to judicial
proceedings. As such, “it is worth underscoring that more efficient proceedings
can be secured through measures aimed at consolidated decision on proceedings
involving the same matter, in two ways: a) through joint decisions on matters
in proceedings which are considered separately, but subject to a unified
ruling; b) to reduce the caseload before the Courts – as the time required to
decide on the respective matters could be used more efficiently in other
proceedings, the processing of which will involve less ‘deaden time’ (= periods
in which the proceeding is at a standstill).”
In
addition, the explanatory statement goes on to note the instability caused by
the coexistence of conflicting decisions in similar legal matters, as set out
in the following passage: “At the same time, an indefinite number of differing
and inconsistent positions on the same legal norm subjects parties in identical
circumstances to different rules of conduct dictated by judicial decisions
handed down by distinct Courts.
This
phenomenon fragments the system, generates unease, and, at times, causes true
bewilderment among the public.”
The
explanatory statement also adds that “legal
certainty is compromised with sudden and full reversals from established
interpretations of the Courts on matters of Law,” underscoring that ‘People are
not, or should not be — to use Bentham’s well known image – like dogs who only
discover that something is forbidden when the stick hits their noses.’”[1]
It
is in this context that the Issue of Resolution of Repetitive Matters emerges as
an instrument to prevent the proliferation of differing decisions in cases
involving similar matters. The measure includes hearing of repetitive special
and extraordinary appeals.
Stable social relations are a necessary premise to ensure social
peace and order. In the final analysis, that stability is
entrusted to the judicial branch through its decision-making pwers. In this light, the system of judicial
precedents represents and essetia instrument to
guarantee the coherence and prdictability of judicial
decisions and, by extension, provide for stable social relations. Similarly to
the advances secured recently by the Brazilian legal system as a whole, the
application of legal precedent was significantly strengthened with the advent
of the 2015 New Brazilian Code of Civil Procedure. In this sense, there is a
direct correlation between greater access to precedent and greater stability of
social relations, insofar as the process will serve to nuture
a mentality within the public at large in line with the predictability of legal
matters and the potential consequences of filing legal actions. Of particular
importance in this context is the operation of an open and fully computerized
justice system capable of providing full access to the decisions handed down by
the Courts.
Repetitive
appeals were introduced in the Brazilian legal systems as a technique reserved
to the High Courts[2]
as a means of exercising more consistent jurisdictional control, not only in
terms of reasonable duration, but also, with respect to legal certainty,[3]
rendering simultaneous application mandatory to given precedents of the High
Courts, a system incremented following enactment of the New Brazilian Code of
Civil Procedure.
There
is no basis, therefore, for contextualizing repetitive
special appeals as a mere corollary to the principle of reasonable
procedural times (principle of speedy trial), for while judgments issued under
the aegis of this system have unquestionably resulted in a reduction of the
caseload, removing some of the burden from the Superior Court of Justice, this
does not necessarily represent a direct and immediate contribution to faster
proceedings, inasmuch, in fact, as there is the potential for long waiting
periods until the matter in question is actually heard.[4]
To
be sure, proceedings tied to repetitive special appeals on behalf of legal
certainty are marked by detailed processing procedures regulated by article
1,038 of the Brazilian Code of Civil Procedure and, by extension, more
elasticity involving the combination of judicial and administrative acts
between the Superior Court of Justice and the thirty-three Courts under its
Jurisdiction,[5]
drawing, in addition, the collaborative participation of third parties (amicicuriæ), the
intercession of the Office of the Public Prosecutor, and, although only on rare
occasions, public hearing marked by more in-depth discussions in relation to
conventional special appeals.
The
New Brazilian Code of Civil Procedure, fully committed to the principles of
constitutional proceedings, strove to imbue the decision-making processes of
the Higher Courts more efficient, by developing a system to form and apply
precedents through the various measures available to the parties to
proceedings, among them the repetitive appeal, including, as components of this
category, the Issue of Resolution of Repetitive Claims – IRDR and the Issue of
Assumption of Competence – IAC.
According
to Rodolfo Mancuso, ‘‘Federal legislation, in an effort to prevent the
accumulation of cases, especially in the Higher Courts, allowed itself to be
seduced by the idea of hearing multiple and repetitive Special Appeals and
Extraordinary Special Appeals that the statistics of the Federal Supreme Court
and the Superior Court of Justice identified as the principal villains for the
untenable caseloads carries by the two Higher Courts.”
It
is evident that the physical expansion of jurisdictional bodies, concomitantly
with a growing shortage of judges, never represented a solution consistent with
the progressive increase in litigiousness. Legal scholars and experts
themselves never placed a priority, in their discussions on the slowness of the
justice system, the causes for the problem, identifying, in short, as an
inevitable product based on the conclusion that legal priority should be given
to legal certainty through fair and equitable dispensation of justice. For its
part, the legislation, while implementing consecutive amendments to the
applicable procedural norms, also failed to see the issue from an adequate
perspective, relegating the case law to the status of mere reference
guidelines.
But
in placing the discussion on the agenda, in a context Cândido
Rangel Dinamarco called the march toward valuing case
law, the legislation, influenced by the German and Spanish experiences, adopted
another position, giving rise to norms designed for this purpose (i.e. giving
weight to precedent), including Law No. 8,038/90 (Law of Appeals), on binding
judgments and general repercussion, in addition to successive amendments to the
revoked Code, as. For example, article 285-A of the 1973 Brazilian Code of
Civil Procedure.
Subsequently,
in 2008, article 543-C was incorporated in the 1973 Brazilian Code of Civil
Procedure through enactment of Law No. Law 11,672/2008, which
created the serial sample case judgment modality within the scope of the
Superior Court of Justice based on the identical legal theory, known as the Law
of Repetitive Appeals.
As
the target Court of the provision, the Superior Court of Justice issued
Resolution No. 08/2008 (preceded by Resolution No. 07/2008, which was revoked
even before entering into effect, as it was inconsistent with Law No.
11,672/2008), regulating within its scope, the repetitive appeal procedure.
A
full seven years later, based on the extensive experience amassed with the legal
provision in question (article 543-C of the 1973 Brazilian Code of Civil
Procedure), reflected in ruling on approximately 1,000 repetitive appeals, the
2015 New Brazilian Code of Civil Procedure was enacted, entering into force on
March 18, 2016, articles 1,036 – 1,041 of which address the Judgment of
Repetitive Extraordinary and Special Appeals.
As
such, the repetitive special appeal is currently governed by a set of norms and
is subject directly to Law No. 13,105/2015 – New Brazilian Code of Civil Procedure , with the amendments thereto introduced by Law
No. 13,256/2016.
In
addition to the provisions of sub-section II, section II, chapter IV, title II,
book III, special part of the New Brazilian Code of Civil Procedure, there are
several other articles that directly address repetitive appeals, namely:
article 69, VI, on acts of legal management and cooperation; article 927, III,
§§2 – 4, governing the effectiveness of decisions handed down in proceedings on
repetitive appeals and procedures for the subsequent amendment or revocation of
the respective precedent; article 928, II and sole paragraph, in respect of the
context of repetitive cases, indicating the matters covered under the
provision; article 955, sole paragraph, II, which enables lower courts to hear
cases involving conflict of jurisdiction based on the theory of legal
precedents; article 979, §3, which mandates wide dissemination of decisions on
the matter provided in article 1,037; article 998, sole paragraph, on the
possibility of applying the theory of legal precedents, even if the reference
appeal is withdrawn; article 1,.022, sole paragraph, I , which expressly finds
any decision or judgment that fails to apply the repetitive appeal precedent
flawed and incomplete.
The
repetitive special appeal incorporated in Brazilian civil law in 2008 (Law No.
11,672/08) constitutes a guarantee of legal certainty, to the extent it is
intended, with reasonable effectiveness, at mandatory standardization (article
927, III, of the 2015 of the Brazilian Code of Civil Procedure), the
consolidated position on a certain matter (questions of legal precedent) based
on the application of precedents to an infinite number of proceedings involving
the identical matter of law (article 1.036, heading, of the 2015 Brazilian Code
of Civil Procedure) in sample judgments involving two or more representative
special appeals on the dispute at hand.
It
could be said, in addition, that the method for hearing and judging these
matters is endowed with a dual legal profile: standardization based on the high
reputation and authority of the those sitting in judgment and, in addition, the
simultaneous application of precedents to all proceedings verified to have the
identical legal basis.
Ultimately,
the principal feature of the process is the effort to contribute toward stable
civil proceedings and greater legal certainty, while reducing case flow, combined
with the specific ends of the appeal procedure, namely: (i)
final and simultaneous consensus solutions to large-scale claims, involving
identical principles; and (ii) concentrated development of mandatory
precedents.
To
summarize, in other words, the repetitive special appeal can be defined based
on its two central purposes (micro appeal systems), one tied to a final
decision on large-scale matters, and another on developing binding precedents
consisting, in this way, of an optimal method to develop mandatory precedents
on the basis of the management and judgment of repetitive appeals and claims
involving identical legal grounds.
In
spite of the legal nature of this important and innovate procedural strategy,
it is important to note, first, that the repetitive appeal does not, from a
technical standpoint, have the same legal nature as general appeals or even
class-action suits and, as such, cannot be considered mere continuations of the
respective claim.
The
current Brazilian Code of Civil Procedure, drafted to augment the establishment
and status of precedents, providing, in this way, greater effectiveness to the
Justices on the respective High Courts, regulates repetitive appeals in detail,
enabling (in fact, requiring) a greater level of understanding of the
procedure.
The
procedure for repetitive appeals begins and is conducted as provided in
articles 1,36 – 1,038 of the Brazilian Code of Civil Procedure, with the
selection, assignment, and submission of the representative appeals --- also
referred to as the pilot or paradigmatic appeals ---, and proceeds through
formulation of a broadly applicable precedent, for purposes of reaching a final
decision on numerous cases (articles 1,039 – 1,041 of the Brazilian Code of
Civil Procedure), giving rise to an informed and well-found judgment that
closely represents the consensus position of the Superior Court of Justice,
rendering subsequent amendment highly unlikely, an aim that requires an
intricate procedure (article 927, § 3, of the 2015 Brazilian Code of Civil
Procedure).
The
mechanics of the repetitive special appeal is divided into four stages, namely:
(1st) selection and assignment of the representative appeals
involving the repetitive matter, suspending, to this end, all proceedings
involving the same matter of fact – articles 1,306 and 1,037, Brazilian Code of
Civil Procedure; (2nd) hearing, in preliminary motions prior to
review by the full Court – article 1,038; (3rd) judgment, aimed at
establishing the theory of precedents based on examination of the pilot
appeals,– article 1,039; and (4th) application of the respective
precedent, which is mandatory and immediately enforceable, the suspended
proceedings, extendable, in addition, to future case – articles 1,040 and
1,041.
The
first stage is divided into two stages, intrinsically interconnected,
prescribed in articles 1,036 and 1,037 of the 2015 Brazilian Code of Civil
Procedure and which result in the suspension of multiple proceedings. In
summary, the first stage is limited to the selection, by a the Chief Justice of
the Federal Supreme Court or the Superior Court of Justice, of two or more
special appeals involving the matter of fact replicated in multiple
proceedings, followed by the second stage, when the representative cases to a
decision by the rapporteur of the Superior Court of Justice, which, restricted
to the representative legal issue, will affect the special appeals submitted
thereto for this purpose or any other deemed to be eligible to this end,
whereupon all proceedings and appeals containing the repetitive matter under
the Court’s direct jurisdiction will be, from the first stage, provisionally
dismissed. The precedent will then be extended nationally to all proceedings
involving the legal issue on which the presiding Justice has rendered a
decision.
When
implementing the system under study in relation to the paradigmatic appeals
selected for review, the President or Vide-President of the Court of Origin and
the rapporteur of the Superior Court of Justice will determine, first, where a
multiplicity of interconnected appeals exists, in which a specific matter in
dispute appears. However, the cases under review are not required to be
restricted to a single appellate petition but may address other issues under
discussion, treated as separate matters (article 1,037, §7, of the 2015
Brazilian Code of Civil Procedure).
By
virtue of article 1,037 of the heading, which makes reference to the
requirements listed in article 1,036, heading, the prima facie presence of the extrinsic requirement for processing
each pilot appeal must be confirmed (article 1,036, §6, first part) for
purposes of ensuring in-depth arguments on the matter under appeal to ensure
that based on the broad debate of such issue a precedent of unquestionable
substance is formulated.
Upon
selection of the representative special appeals in connection with the dispute
in question, the President or Vice-President of the Courts of Origin or the
Rapporteur of the Superior Court of Justice will render a decision on the
assigned matter, in which, pursuant to article 1,037 of the 2015 Brazilian Code
of Civil Procedure the theory of legal precedents must be identified precisely
(heading, sub-section I, of the article above), ordering through the same
decision that all pending proceedings throughout the national territory be
suspended (sub-section II, following). The Justice will then direct the
remaining Ministers of the Superior Court of Justice and the Presidents and
Vice-Presidents of all federal state and/or regional courts in Brazil to
implement the measure adopted within their respective jurisdictions.
Following
reporting of the decisions adopted on the pilot appeals (which, pursuant to
article 979, § 3, of the 2015 Brazilian Code of Civil Procedure, will be widely
disseminated), interested parties, bodies, or entities may within a period of
fifteen days file amicus curiae briefs, as per articles 138 and 1,038 of the New
Brazilian Code of Civil Procedure.
The
respective pilot appeals will then be entered in the docket, except in cases
involving detained defendants or habeas corpus, whereupon the proceeding will
be given priority in the sessions of the pertinent Sections or Special Court,
the competence of which is contingent on the cases prescribed in the Internal
Rules of Procedure of the Superior Court of Justice.
Following
the vote and obtainment of a majority, the President will announce the result,
directing publication of the judgment, which will enter into immediate force,
irrespective of the filing of motions to clarify. All appeals provisionally
dismissed by the decision taken within the Superior Court of Justice entered
against judgments consistent with the decisions taken will be dismissed, while
all remaining appeals will be subject to the position adopted by the Court.
After
publication of the decision confirming the paradigm precedent, the respective
precedent will be immediately applicable to all proceedings involving the same
legal matter throughout the national territory and extend to all future
proceedings, including, in addition, filings in respect of this modality of
judgment.
Pursuant
to the procedural stage of each dismissed proceeding, as per articles 1,040 and
1,041 of the 2015 Brazilian Code of Civil Procedure, the Federal Regional
Courts and the Courts of Justice will adopt one of the following solution: (i) continued hearing of the special appeals subject to the
judgment that have already been filed, dismissed on the merits, and contain
claims other than the matter ruled on by the appellate court will be denied;
(ii) a new hearing will be held by the full Court to apply the precedent in
relation to proceeding involving special appeals awaiting a judgment on the
merits, where the judgment under appeal violates the paradigmatic precedent;
(iii) repetitive proceedings suspended in the first or second instances,
including prior to filing of special appeal, will continue normally so as not
to affect the proper procedural stage for application of the paradigmatic
precedent.
Not
that article 1,040, heading, of the Brazilian Code of Civil Procedure clearly
states that the steps listed above will be adopted following publication of the
paradigmatic decision, which, for purposes of hearing and ruling on dismissed
repetitive proceedings, would, in fact, waive mandatory communication through
the pertinent notices to the Courts of Origin, to which end the precedent may
--- in truth, should --- be applied immediately upon publication in the
Electronic Judicial Register.
This
legal analysis leads to the conclusion that the precedent emanating from the
repetitive appeal is effective, in addition to mandatory, and instantaneous,
arising without any conditions from the respective judgment, notwithstanding,
by extension, the possible submission of motions to clarify to which the Court
may be subject, pursuant to article 1,022 of the 2015 Brazilian Code of Civil
Procedure, in theory, or, additionally, filing of an extraordinary appeals in
the event of a breach of the Constitution.
Repetitive
appeals have emerged, in essence, as a critical tool to ensure the coherence
and rationality of the rulings handed down by the Superior Court of Justice and
more recently the Federal Supreme Court to reduce the Judiciary’s caseload,[6]
developed at a time of significant
dissatisfaction and lack of interest in the Court,
for the specific purpose of optimizing jurisdictional control by the Courts of
precedents.
The
fascinating phenomenon of mass claims, which
have multiplied nationally, grinding the wheels of justice to a halt by
overloading the Court system and, at times, revealing the absolute lack of
coherence in the consideration of these matters,[7]
stems from a variety of causes, from factors tied to outdated legislation, to
the progressive increase in litigiousness (the culture of litigation), and to
the inefficiency of the justice system (crisis of management) combined with the
quantities and qualitative shortage of human resources (not simply in respect
of civil servants, but the number of available judges.[8]
The
2015 Brazilian Code of Civil Procedure standardized the procedures for
repetitive appeals within the scope of the Superior Court of Justice and the
Federal Supreme Court, within application, in addition of the respective
Internal Rules of Procedure. It is worth noting that the Labor Courts operate a
similar appellate process (articles 896-B and 896-C of the Consolidated Labor
Laws).
Implementation
of repetitive appeals, in addition to the incorporation of instrument to foster
the issuance of mandatory decisions for all other bodies of the judicial branch
will undoubtedly contribute to consolidating a more transparent justice system,
as citizens will have the opportunity to know in advance or have an idea as to
what the outcome of their respective claims will be.
[1] BENTHAM cited by R. C. CAENEGEM,
Judges, Legislators and Professors, p. 161.
[2] The Federal Supreme Court did not
have under the 1973 Brazilian code of Civil Procedure an express provision
providing for the repetitive extraordinary appeal modality, but sought to
provide this connotation through the appeals submitted to review of the general
repercussions of the matters in question. Cassio Scarpinella Bueno writes, “In the
light of the fact that the provision in article 543-B went beyond
identification of general repercussion based on repetitive cases to include
decisions on repetitive extraordinary appeals, it was preferable that the 2015
Brazilian Code of Civil Procedure expressly recognize the instrument, as it
did. So much so, in fact, that articles 1,036 – 1,041 regulate, in addition to
the special appeal (543-C of the 1973 Brazilian Code of Civil Procedure),
repetitive extraordinary appeals giving substance to the provision herein
cited.’’ (Manual de Direito Processual Civil, Volume Único,
1º edição, 2015, Ed. Saraiva,
pág. 549).
[3] With respect to this dual concern
of the legislation, the Opinion of the Constitutional Justice Committee stated
in relation to Bill No. 117/07, which gave rise to Law No. 11,672/08: ‘‘Simplification of multiple proceedings,
based on the identical matter, in one decision is a healthy and important step
to reduce the load on the Courts. This innovation, contained in the Bill under
review, hearing of interested third parties to the matter, strengthens the
principle of legal certainty, the right to adversAlegreya proceedings, and right
to a full defense for purposes of the final judicial decision.’’
[4]
Emblemático citar a esse respeito que o primeiro recurso especial julgado sob a
técnica dos recursos repetitivos, o RESP 1.091.443/SP (Corte Especial –
Relatora Min. Maria Thereza de Assis Moura), fora afetado como tal em outubro
de 2008, mas incluído em pauta somente na sessão do dia 30/11/2011, cujo
julgamento, interrompido por pedido de vista, veio a ser concluído, mais de
três anos depois, em maio de 2012.
[5] Existem
atualmente 27 Tribunais de Justiça e 5 Tribunais Regionais Federais.
[6] ‘‘There is no sense in requiring
the Federal Supreme Court and the Superior Court of Justice to rule on
innumerable and innumerable occasion on the same solution to a given matter. As
the Federal Supreme Court and the Superior Court of Justice are High Courts
dedicate to interpreting the law and setting precedents, the full review of a
given issue in a single proceeding is sufficient to ensure the Courts meet
their legal duties. For this reason, group proceedings are perfectly consistent
with the new profile of extraordinary appeals and special appeals’’ (Luiz Gulherme Marinoni
Sérgio Cruz Arenhart and
Daniel Mitidiero, in
Novo Código de Processo
Civil Comentado, 2015, Editora
Revista dos Tribunais, págs. 1.079/1.080).
[7] ‘‘Someone might say that various decision
for a single case does not mean disorder, but constitutes a reflection of a
natural diversity of opinions. It is true that this terrible practice was
consolidated in our law for a long time. We must determine, however, if the
intention is to perform a critical examination of a situation in the Courts,
and whether this violates the principles of equality, impartiality, and legal
certainty. Different decisions for the same cases cannot be admitted, unless we
decide that judges and Courts are not part of a unified system and branch of
government.
In
truth, the coherence of judicial decisions is not only fundamental to the
affirmation, authority, and credibility of the judicial branch, but is
essential to the rule of law. In modern-day States in which the adequate
distribution of justice requires many judges and a variety of Courts, it is
necessary that cases be solved, following a ruling by the respective Supreme
Courts, through the same rule or interpretation, or we would not be living
under the rule of law, but in a State of multiple and incoherent opinions of
those who believe they exercise power to enforce the law.’’ (Luiz
Guilherme Marinoni, O STJ no Estado Constitucional, in:
O Papel da Jurisprudência no STJ, 2015, Ed. Revista das Tribunais, pág. 696).
[8] In the well-founded opinion of Luiz Guilherme Marinoni ‘‘The crisis
of the judicial branch is based on a complex etymology, which to this day
has not been fully dissected, beginning with (i) the culture of litigation (fostered by an
exaggerated and unrealistic reading of access to the justice system, to the
detriment of other single and multiple constituent mechanisms), proceeding to
(ii) the absence of quality legal
provisions and their excessive number (legislative
fury), in conjunction with poor writing, legal and constitutional
deficiencies, overlapping of texts on the same matter, and finally (iii) the
lack or insufficient supply of financial resources to adequately organize the
State justice system. These factors aggravate uncertainty and the instability
of the legal environment as a whole, feeding the explosion of litigation, and providing margin for the filing of new
legal proceedings, in a vicious and destructive cycle.”