O "writ of certiorari" norte-americano e o recurso extraordinário brasileiro: análise comparada

AUTOR(ES)

Vicente de Paula Marques Filho

DATA DE PUBLICAÇÃO

2006

RESUMO

The U.S Supreme Court is the highest court in the nation, thus has the final judicial word in any case involving the U.S. Constitution and the federal law. The writ of certiorari is the main tool to gain access to the Court, which is the equivalent to the Brazilian recurso extraordinário. The immediate aim of this thesis is to make a comparative analysis of the recurso extraordinário and the U.S writ of certiorari, underlining their convergences and differences. Studying the recurso extraordinário under a comparative analysis provides to the researcher new perspectives to identify aspects not yet explored and allows new research over the subject. The thesis adopts the comparative methods, that is why the American judicial system is previously analyzed to underlining its main characteristics. It follows a brief study about the U.S. Supreme Court, through its more important judgments. The judicial procedure comparative analysis has its own chapter where is studied the differences among time limitation, fees, petition in forma pauperis proceedings, petition on the merits, petition for writ of certiorari, petitions for rehearing and stays. The U.S. Supreme Court discretionary jurisdiction has also special chapter, mainly because of the recent modification brought by the 45/04 Brazilian Constitutional Amendment, which will certainly bring debates about the subject. The highest court discretionary jurisdiction, seen under huge distrusting for the Brazilian commentators, has been adopted by the American judicial system since 1925. Factors motivating the exercise of the Court certiorari jurisdiction such as final judgment to review decisions of the state courts, important constitutional issues, erroneousness of decision below, factual issues and previous decision by the court below are shared by both judicial systems. After the 45/2004 Brazilian Constitutional Amendment probably there will be given less importance to the procedural obstacles because of the new requirement called general repercussion of the constitutional issues involved. Interest groups pursue their political goals in the judicial branch through the amicus curiae brief. Individuals can participate as amicus curiae in the Brazilian judicial system because that is not forbidden and it is largely allowed in U.S Supreme Court. It is suggested some kind of control over the amicus curiae activities in the Brazilian Supreme Court to avoid economical group abuses

ASSUNTO(S)

recurso extraordinario -- brasil amicus curiae writ of certiorari direito processual civil amicus curiae brazilian supreme court friend of the court discretionary jurisdiction recurso extraordinário discricionariedade judicial direito comparado

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