by Alceu Mauricio Junior[i]
Welcome to the first installment of The Law From Here, our globe-trotting new series that gives you a chance to get to know GSU Law’s LLM students. Like many of our LLM students, Alceu Mauricio Junior has a distinctive background that features ample experience practicing law in another country–here, Brazil. However, even amongst this rarified group, Mauricio stands out because he is an experienced judge with several postgraduate degrees. In today’s The Law From Here, he offers his insights into legal research in the Brazilian system, and how it compares to the United States.
Having worked as a judge in Brazil for more than twenty years, I enrolled in the LL.M. Program at Georgia State University (GSU) in 2021. I thought the GSU LL.M. Program would be interesting not only because it opens a door to apply for the Bar Exam in some U.S. jurisdictions, but also because it would widen my perspective on how to view, study, and apply the law, either here in the U.S. or in Brazil.
Alceu Mauricio Junior
While studying the law in a common law country and in a different language, it is almost impossible not to set the mind in a mode of comparison. The whole learning process is triggered by focusing on what is similar and different, and how I would express a legal concept in English versus Portuguese (my native language). My goal in this post is sharing my comparative perspective on legal research, presenting a picture of what Brazilian and U.S. lawyers could expect while researching the law in a country with a different legal tradition
Contextualizing the Brazilian Legal System
Lawyers, being pragmatic professionals, naturally want to draft persuasive arguments and accurately predict outcomes in legal disputes. To do so, they need to find and select the most important authorities, in other words, the authorities that are most likely to guide judges’ and government officials’ decisions. As Brazil and the United States are on different sides of the civil law/common law spectrum, one could expect significant differences in how practitioners research the law in those countries.
Let me start by contextualizing Brazil and its legal system. Brazil has the third-largest economy in the Americas, following The United States and Canada. It has a population of more than 200 million people and has the fifth-largest territory globally. A former colony of Portugal with Portuguese as its official language, Brazil has been “a melting pot for a wide range of cultures.” Brazil is a federative republic, with a federal government, 26 states, and the Federal District. It has a presidential system and a bicameral federal legislative like the United States.
The Brazilian legal system follows the civil law tradition, while also adopting some common law doctrines. Brazil has a written Constitution, which is the supreme law of the land. The Constitution establishes separation of powers, federalism, and fundamental rights. It addresses several fields of law and has an extensive Bill of Rights. Though Brazil is a federation of relatively autonomous states, as in the United States, Brazilian law is centralized at the federal level. Congress has the exclusive power to legislate about contracts, family, crime, torts, trade, corporations, energy, and many other topics. Constitutional law and statutory law are the basis of the Brazilian legal system.
Case law plays a crucial role in legal reasoning and analysis in Brazil, and recent developments have adopted the stare decisis doctrine for some judicial decisions. However, even though precedent in Brazil may consolidate interpretations of the law, they do not create law, as courts must base their decisions on constitutional or statutory law. Nonetheless, courts have the power of judicial review and may invalidate unconstitutional statutes. Most case law has only persuasive authority, but judges follow decisions from higher courts as a common practice.
Brazil has federal and state courts and specialized independent court systems, such as labor, electoral, and military courts. At the top of the judicial system, the Federal Supreme Court (Supremo Tribunal Federal or STF) can hear appeals on constitutional matters, and has original jurisdiction over “direct actions,” challenging the constitutionality of statutes. There is also the Higher Court of Justice (Superior Tribunal de Justiça or STJ), which hears final appeals on the interpretation of federal statutory law.
Facade of the Federal Supreme Court. Photo: Dorivan Marinho/SCO/STF
Comparing Legal Research in Brazil and the U.S.
In some respects, researching the law in Brazil and the U.S is similar. When facing a new topic, lawyers first look at secondary sources and then continuously narrow their research looking at applicable codified law and case law. However, two main differences set apart legal research in the U.S. and Brazil: the use of electronic research tools and the relative weight of primary and secondary authority in legal reasoning.
A. Research Tools
In Brazil, practitioners do not have access to comprehensive legal research products such as Lexis+ or Westlaw Edge. Some paid legal research services offer access to databases of primary and secondary authorities, newsletters, and alerts on new statutory or case law. Examples of those services are Plataforma Forum and Revista dos Tribunais Online. As a judge in federal court, I have access to CAJU, a service provided by the Federal Justice Council with subscription to most of Brazilian legal databases of secondary authority, but like many other practitioners, I would mostly research secondary authority in treatises, which are the basis of legal education in Brazil.
In the U.S., after researching a treatises, I would use Lexis or Westlaw to access statutory and case law. In Brazil, I would access the Legislation Portal at the President’s Office website. At this portal, one can research the Constitution, the various codes, federal statutory law, and regulations. Unlike the United States, Brazil does not have a single code encompassing all federal statutory law. Brazil has eighteen different codes, one for each area of law, and thousands of non-codified statutes. Brazilian students devote a reasonable time in law school learning about the different codes and statutes that may apply in a specific area of law. After graduation, a good lawyer will follow the Legislation Portal’s daily newsletter. The Legislation Portal does not generally provide cross-references between statutes. The statutes are organized chronologically and not by area of law, as in the U.S Code. On the other hand, a lawyer can search the Portal using keywords. The Portal displays the legislation on pages searchable on the internet. All legislation on the Portal is up to date, and every document has references to modifying statutes or amendments.
After collecting information on the secondary sources and narrowing the applicable statutory law, a practitioner’s next step is usually researching case law. Once again, this step would be much simpler in the U.S. using Lexis or Westlaw. In Brazil, lawyers usually research case law using court’s individual websites, which offer handy and reliable free tools for researching case law, but not in a comprehensive, unified portal. In my practice, I would generally start at the Supreme Federal Court’s and Higher Court of Justice’s webpages for two primary reasons. First, in Brazil, federal and constitutional laws are often controlling. The Brazilian Constitution is extensive and has provisions related to several fields of law. So, even topics such as patent law or family law often come before the Supreme Court. Second, the higher courts in Brazil do not have discretionary certiorari procedures. Thus, the Brazilian higher courts receive and decide hundreds of cases every year, and there is a considerable chance of finding precedent helping my reasoning.
The courts’ websites offer handy and reliable free tools for researching case law. The Supreme Federal Court (STF), for instance, offers a search engine on which a lawyer can research cases using keywords. A case on that database may have specific references to secondary authority, codified law, and precedents cited in the opinion. However, different than Lexis or Westlaw, there is no yellow or red flags to show a case may have been overruled or received a negative treatment in a subsequent decision.
B. Legal Culture and the Weight of Authority
The second structural difference researching the law in the U.S. and Brazil is the relative weight of primary and secondary authority in legal reasoning. In the U.S., the framework of stare decisis lays a considerable weight on binding precedent. Precedent is also essential in Brazil, and some judicial decisions are binding authority. However, there is no general principle of stare decisis, and judicial decisions are binding only in particular instances, mostly related to Federal Supreme Court’s decisions on constitutional matters. Most of precedent in Brazil has mere persuasive value. Precedent from the Supreme Federal Court or the Higher Court of Justice has a powerful, persuasive force. A decision from an appellate court in the trial court’s jurisdiction also has a relevant persuasive power, but it is not necessarily more persuasive than a decision from a different appellate court. For instance, when I draft a decision in my court, I will research case law from the appellate court in my circuit. However, if the only on-point decision from my circuit is an old one, I could as well use a newer decision from a different circuit that better reflects the current law.
Higher Court of Justice (STJ) –Plenary of the 1st Section – Judgment Session. Photo: Sandra Fado, CC BY-ND
In addition, secondary sources may play a much more significant role in legal reasoning in Brazil than they would in the U.S. Treatises and law review articles do not have the same force as on-point precedent. However, they may have a similar if not greater persuasive appeal than judicial decisions that do not cover facts resembling the disputed case. This trend comes from the Brazilian legal culture and its civil law origin. While courts in the U.S. put a distinct value on legal certainty (which lays the foundation for the stare decisis doctrine), Brazilian courts tend to see justice in individual cases as a higher value. In practical terms, Brazilian courts are more willing to find distinguishing factors from precedent if they think justice would be better served, even at the expense of law’s predictability. Thus, when researching the law in Brazil, secondary sources play a role that goes beyond helping a lawyer find a roadmap for statutory and case law.
My experience researching the law in the U.S. is still ripening, so drawing conclusions would be premature at this point. This post’s goal was to give lawyers from Brazil and the U.S. an idea of what they could expect while researching the law in a country with a different legal tradition. Legal research’s purpose does not change when we cross borders. Lawyers and courts need to find authoritative sources to support their arguments and assessments. However, how lawyers and courts research the law may vary from country to country. I noticed two main differences between researching the law in Brazil and the U.S. First, while legal researching in the U.S. predominantly relies on comprehensive paid research tools, in Brazil, research tools mainly used are free, official, non-integrated, online resources. Second, while stare decisis is a core, general principle of U.S. law, giving precedent the spotlight in legal reasoning and researching, precedent and secondary authorities may have similar weight in Brazil when there is no binding, on-point decision.
A question that remains open is whether those differences are independent. Maybe the comprehensive legal tools one can use in the U.S. only reflect a difference of technology and economic capacities, but maybe they exist primarily because the U.S. legal culture demands a precise analysis of precedent that is not required in Brazil. I would be only guessing trying to answer this question, but if I had to guess, I would put my money on legal culture being the most critical factor shaping differences in legal research.
[i] Alceu Mauricio Junior has been a Federal Judge in Brazil since 2001 and is currently an LL.M. candidate at Georgia State University College of Law. He holds a Ph.D. in constitutional law and has a master’s degree in public law. LinkedIn.