Call for Papers - Thematic Dossier “Structural Process: what for and how to regulate?”

2024-11-19

Call for Papers for the Thematic Dossier “Structural Process: what for and how to regulate?” organized by the Guest Editors: Prof. Dr. Fábio L. Quintas - (IDP/DF), Prof. Dr. Benedito Cerezzo (UnB - FD/DF), Prof. Georges Abboud (PUC-SP / IDP-DF) and Prof. Dr. Thaís Amoroso Paschoal - (UNESP FCHS/SP) with publication scheduled for 2025.

 

CONTEXT[1]

Recently, the President of the Federal Senate, Senator Rodrigo Pacheco, set up a committee of jurists to draw up a draft law on the “structural process”[2]. According to the Work Plan presented by the Committee's Rapporteur at a meeting on 19/6/2024, the draft bill that is to be drawn up will observe the following guidelines: i) a short text, ii) that it be operated in conjunction with the Code of Civil Procedure and with the rules governing collective proceedings (Law No. 7.347, of 1985 [LACP], and Law 8. 078, of 1990 [CDC]), and iii) the use of specific provisions of Bills 5.139/09, 8.058/2014 and 1.641/21, which are related to the context of the structural process (conceived primarily as a public civil action, but with application to ADPFs of a structural nature, according to the scope of application considered for the preliminary draft in the aforementioned work plan).

In his classic text published in 1979, Prof. Owen Fiss identified a new pattern of judicial activity in the United States, which he called the “structural judicial process”, aimed at guaranteeing the realization of public values. In his words, “a structural lawsuit is one in which a judge, confronted by a state bureaucracy with regard to constitutional values, sets out to restructure the organization in order to eliminate the threat imposed on those values by the existing institutional arrangements”[3]. Initially identified as a type of litigation involving the state bureaucracy, the concept of structural litigation has expanded to include large corporations and economic agents. The technique is aimed, in particular, at situations in which there is an unconstitutional omission and consequent absence or insufficiency of protection for fundamental rights.

In normal situations, the Judiciary intervenes to control the conduct of agents and its results (declaring the unconstitutionality or illegality of certain conduct, annulling acts, ordering compensation, applying the appropriate liability regime). It cannot be denied, however, that in many cases the judiciary goes further, determining the very implementation and execution of public policy, without, in most cases, taking into account the capacities and possibilities of the institutions involved. In these cases, and for a significant part of the doctrine, the structural process would be a technique that would make it possible to understand these capacities and possibilities and, preferably on the basis of an institutional dialog, would allow the construction of solutions for the adequate protection of rights.

It is clear that the degree of intervention by the Judiciary in the structural process challenges the proper understanding of the principle of separation of powers when we think of disputes involving the state. And when we think of private disputes, the limits of judicial action also come into play in the face of the principle of free enterprise and legality, as an expression of freedom. Thinking about these limits is fundamental if the use of technology is to be legitimate and can, in fact, guarantee the protection of rights.

We cannot ignore the great development of the structural process in Brazil based on doctrine and legal practice (considering a certain vision of the Constitution, operated with the procedural techniques provided for in the collective process and in the CPC), with many of the members of the Commission of Jurists having made significant contributions in this regard. This accumulated experience will certainly help the legislator, when regulating the structural process, to ratify the successes, correct the excesses and point out new directions for the structural process, while being attentive to observing the limits of the Judiciary's action in the Democratic State of Law.

The work plan of the Commission of Jurists indicates guidelines that seem to signal an awareness of the caution that should govern judicial intervention in this type of process, when it situates the “structural process as a shared construction of solutions to complex disputes”, which should encourage “consensual and extrajudicial methods of conflict resolution and procedural cooperation and negotiation”. This is a good starting point, but we must be aware of the requirements that justify the establishment of this exceptional jurisdictional activity and the limits of this action.

Gutierrez Beltran proposes a brief list of criteria for evaluating the level of legitimacy of structural judicial interventions (in cases involving the state), which I will summarize: i) there must be an explicit normative basis - legal or constitutional - which establishes an obligation for the authorities to adopt measures of a general nature in order to guarantee citizens' rights; ii) a situation of generalized and systematic violation of rights must be present; iii) there is a correlation between judicial legitimacy and the judicial body which decides the structural process (collegiate and apex bodies have greater legitimacy); and iv) judicial intervention must promote the least possible interference in the development of the decision-making process inherent in the competences of representative bodies. For the author, the greater the degree to which the “structural decision” adheres to these requirements, the greater the legitimacy of judicial action[4].

These requirements, as we can see, seek to deal with the difficulties inherent in the incursion of judicial activity into this area, such as the lack of representative (democratic) legitimacy of the Judiciary, the (dynamic) balance of the principle of separation of powers and the preservation of the decision-making spaces of the institutions. And, in our view, they help guide the delineation of procedural categories in this specific field (to regulate procedural presuppositions, the proper handling of procedural techniques, the hypotheses and possibilities of definitive and provisional relief, appeal measures and other elements relevant to the structural process regime).

In the Thematic Dossier “Structural Process”, scheduled for publication on 1/2025, the Public Law Journal (Qualis A1) invites the academic community to participate in this current and relevant debate, renewing its commitment to prioritizing critical and innovative approaches in the legal field. By examining the limits of judicial intervention in public policies to ensure fundamental rights, the dossier encourages empirical studies and robust literature reviews, offering a current and interdisciplinary analysis of the role of the Judiciary in the Democratic Rule of Law, suggesting some thematic axes for the development of reflections.

 

THEMATIC AXES:

  1. The judiciary and the structural process: the dynamic balance between law and politics. In order to deal with the phenomenon of judicialization and activism, it is important to reflect on the limits of the Judiciary's actions and the creation of law by the Judiciary (the problem of legitimacy). In activities that are currently regulated by the Public Administration, with organized and complex structures, there is also the question of how the Judiciary should intervene. This approach raises multiple questions about the conditions that attract the legitimacy of the Judiciary to intervene in the event of unconstitutional omissions and the absence or insufficiency of protection for fundamental rights. Other possible dimensions of reflection can be indicated: i) the problem of bringing the judiciary closer to the political decision-making process[5]; ii) regulatory asymmetry and structural decisions.
  2. Structural proceedings and the representation of vulnerable people and groups. Many processes considered structural are concerned with protecting the fundamental rights of vulnerable people and groups. This requires a close look at at least two fundamental issues: a) the adequate representation of these people or groups, from a perspective that considers their effective and adequate participation in the process; b) the adequacy of procedural techniques, based on the criterion of vulnerability.
  3. Procedural prerequisites in structural proceedings. Should the structural process be conceived as a collective process? Does the structural process demand a re-reading of requirements such as legitimacy of the parties (adequate representation), interest in acting (need and usefulness of judicial protection), judicial impartiality and competence? How should we think about the representation of vulnerable groups in the structural process?
  4. The structural process and consensus. The Commission of Jurists tasked with drawing up the preliminary draft of the law on the structural process situates the “structural process as a shared construction of solutions to complex disputes”, which should encourage “consensual and extrajudicial methods of conflict resolution and procedural cooperation and negotiation”. What is the scope for consensus in the structural process, considering the characteristics of structural litigation?
  5. Procedural techniques and the structural process. Considering the impact of judicial intervention on established structures, are there specificities that justify a rethink of injunctions? Is partial advance judgment on the merits appropriate? How should the principle of cooperation apply? Should the appeals system be treated differently?
  6. Evidence in the structural process. Does the structural process justify rethinking the judge's instructional powers, the burden of proof and evidentiary techniques? Should the evidentiary initiative be restricted to the parties and the judge? What is the suitability of the judicial process to deal with technical discussions on which there may be disagreement in the fields of science? What evidentiary techniques can be used to enable the proper use of the structural technique and the achievement of its ends?
  7. Stabilization of decisions in the structural process (preclusions, res judicata and other stabilities). What becomes final in a structural decision? How is satisfaction of the obligation determined? Can the judicial process represent the plastering of the political space?
  8. The phase of compliance with structural decisions. How should we think about the judiciary's role in the enforcement phase of structural processes, in order to guarantee respect for institutional capacities?

 

FOOTNOTES:

[1] Part of this text was originally published in the Constitutional Observatory column on the JOTA portal (QUINTAS, Fábio Lima. Precisamos de uma lei do processo estrutural?, 10/8/204, available on https://www.jota.info/opiniao-e-analise/colunas/observatorio-constitucional/precisamos-de-uma-lei-do-processo-estrutural-10082024)

[2] Established by Presidential Act No. 3 of 2024 (Federal Senate Gazette of April 12, 2024), the Commission (whose President is Deputy Attorney General Augusto Aras, Vice-President is Justice Ribeiro Dantas [STJ] and Rapporteur is Federal Judge Edilson Vitorelli [TRF6]), will have 180 days to present a preliminary draft of the Law on the Structural Process in Brazil. To follow the Commission's work, check out the following page on the Federal Senate's website: https://legis.senado.leg.br/comissoes/comissao?codcol=2664.

[3] FISS. OWEN. Um novo processo civil: estudos norte-americanos sobre jurisdição, constituição e sociedade. São Paulo: RT, 2004. Cap. 1. As formas de justiça. p. 27 (Originally published in vol. 93 of the Harvard Law Review [1979]).

[4] GUTIÉRREZ BELTRÁN, Andrés Mauricio. El amparo estructural de los derechos. Tesis doctoral inédita leída en la Universidad Autónoma de Madrid (14/72016). Cap. 3, precisely section 3.6.

[5] In the literature on regulatory agencies, there is extensive literature on the subject of “capture of the regulator by the regulated”. The question can then be asked about the capture of the judiciary by political agents, economic agents or social agents.

 

Dates of the editorial process:

Submission period: November 19, 2024 to February 13, 2025

Guidelines and Quality Screening: until the end of February/2025

Publication date: 2025

 

EDITORS:

1)Prof. Dr. Fabio Quintas Lima | Lattes | Orcid

Post-doctorate in Legal and Procedural Sciences from the Faculty of Law of the University of Coimbra (2021). PhD in State Law (Constitutional Law) from the University of São Paulo (2013). Master's in Law and State from the University of Brasília (2005). Graduated in Law from the University of Brasília (2002). He is a professor at the Instituto Brasileiro de Ensino, Desenvolvimento e Pesquisa,  - IDP (Brasília-DF), linked to the postgraduate program (from the 2ndsem/2013), in the master's and doctorate courses, to the lato sensu postgraduate course in civil procedure (since 2006), of which he was coordinator in the 2007-2008 biennium, and to the undergraduate course in Law, of which he was coordinator from January 2014 to June 2016. He is a lawyer. He was an advisor to a Minister at the Superior Labor Court (2004-2006). He was Director of the Electoral Judicial School (EJE) of the Superior Electoral Court (2016-2018).

2) Prof. Dr. Benedito Cerezzo | Lattes | Orcid

PhD in Law from the Universidade Federal do Paraná (2002). Master of Laws from the Universidade Federal do Paraná (1999). Graduated in Law from the Marília Law School (1994) and in Physical Education from the University of Marília (1988). He carried out post-doctoral research in Civil Procedural Law at the Complutense University of Madrid, Spain (2019). He was a member of the Commission of Jurists responsible for drafting and monitoring the 2015 Draft Code of Civil Procedure. Professor at the Faculty of Law of the University of Brasília - FD/UnB, teaching undergraduate and postgraduate courses - Masters and Doctorate. His areas of expertise are: Civil Procedural Law, Protection of Fundamental Rights, Protection of Collective Rights and Access to Justice. Lawyer in Brasília/DF, at Marcelo Leal Advogados Associados.

3) Prof. Georges Abboud | Lattes |Orcid

Associate Professor, Doctor and Master in Law from PUC-SP. Professor of the master's and doctorate programs in constitutional law at the Instituto Brasileiro de Ensino, Desenvolvimento e Pesquisa  - IDP-DF. Professor of civil procedural law at the Pontíficia Universidade Católica de São Paulo (PUC-SP). Lawyer and Legal Consultant.

4) Profa. Dra. Thaís Amoroso Paschoal | Lattes | Orcid

Professor of Civil Procedural Law in the Undergraduate Law Program and Permanent Professor in the Postgraduate Law Program (Master's and Doctorate) at UNESP - Universidade Estadual Paulista “Júlio de Mesquita Filho” - Faculdade de Ciências Humanas e Sociais - Campus Franca (SP). PhD and Master's in Law from the Federal University of Paraná. Postgraduate in Civil Law and Civil Procedure from the State University of Londrina. Graduated in Law from the State University of Londrina. Member of the Brazilian Institute of Procedural Law and of Processualistas. Leader of GEPAV - Study and Research Group on Access to Justice and Vulnerabilities and researcher at DEMUS - Study and Research Group on Law and Social Change, both at UNESP-Franca. Researcher at CCons - Center for the Study of the Constitution, and at the Comparative Civil Procedural Law and Adequate Means of Heteronomous Conflict Resolution, Inside and Outside the State research groups at PPGD-UFPR, both members of ProcNet - International Civil Justice and Contemporary Process Research Network.