COMPARATIVE REFLECTIONS ON THE VINDICATION OF RIGHTS IN BRAZIL1 REFLEXÕES COMPARADAS SOBRE A REIVINDICAÇÃO DE DIREITOS NO BRASIL

The present work examines the contrast between the vindication of rights in Brazil and the other countries in the Americas, especially with regard to the writ of security and analogous devices. It scrutinizes the historical development, along with points of convergence and divergence. Furthermore, the discussion contemplates legislation, doctrine, and the caselaw. Thereby, it purports to analyze admissibility, meritoriousness, appealability, preclusion, stare decisis, and the requirement of state action.

it in itself neutral as to the pleas' eventual validities. 16 Translated into United States lawyerly parlance, it must rule out a "genuine dispute as to any material fact" 17 and may favor the endeavor or not.
Hely Lopes Meirelles comments that the case must center on the legality of the contested conduct. He adds that it should not revolve around the alleged factual circumstances. 18 The Supreme Court has discoursed on these. It has insisted on their amenability to facial corroboration. 19 The mechanism under the microscope covers entitlements such as those that a common-law summary judgment might sustain. 20 Accordingly, it necessitates the ascertainability of their abrogation from the pled postulations or the complementary writings, like affidavits or certificates. 21 The trier may not protractedly probe through witnesses, inspections, or experts. If she had to, she would have abort on the spot. 22 The need for speedy satisfaction might furnish a justification for this requirement.
The regulatory codification invites her to a "renewed" attempt upon an opening "dismissal" not entertaining "the merits." 27 Alternatively, she may lodge an ordinary pleading in the aftermath, hoping for an evidentiarily comprehensive probe. Stemming from uppermost echelons of the bench, Summation 304 stresses this prospect by remarking that a "denial . . . does not constitute res judicata." It welcomes a succeeding commencement of "a suitable" cause, 28 while obviously not foreclosing an abandonment altogether. These cogitations imply a distinction between a procedural and a substantive finding. They might grow in clarity through further explication.
Procedurally, the judicial intermediary adjudges documental determinability. At this juncture, it may either facially reject or recognize the claim. A rejection does not hinder the plaintiff from iterating or from heading in an ordinarily available direction. A recognition sheerly triggers an appraisal of meritoriousness.
Substantively, the adjudicator then reviews the documented contentions. She applies the applicable law in denying or granting the request. A no longer appealable resolution by her conceding the requested redress precludes supplementary debate before her or any of her colleagues on the definitively umpired controversy. 29 Plainly, it blocks a reinstatement. Moreover, the claimants usually may not attempt alternate avenues on the affair or seek comparable condemnations. They may return to the courthouse solely when their newly litigated pretension does not entirely overlap with the original one.
As an illustration, a journalist who obtains the overturn of an officialized prior restraint may subsequently and separately recover monetary compensation in torts. Irrespective, a symmetrical preclusive impact would sound as sensible in this context as in that of summarily judging in Anglo-Saxon territory. It would advance efficiency and fairness. The adjudicative bodies at the forefront should have the last word upon fully refereeing on the file before them. Otherwise, they would have to go inefficiently through additional bouts and burden the defense unfairly by according its challenger another bite at the apple.
Illustratively, a woman might aver that her municipality sexually discriminated against her. During the inaugural phase, she would have to attest documentarily to the verifiability of her charges. Such an attestation would enable her to meet the requisite formally posited for the verification of admissibility.
Successively, an inquest on the matter would unfurl. Whenever the documents and germane principles authenticate an infraction, she will carry the day. In the alternative, her bid will fail. Under the proposed interpretation, she or her opponent may not thereafter refile, or file in a full-fledged manner, for discrimination. 30 Figure 1 illustrates the entire sequence. As noted, the Constitution contains another sine qua non: one's attentions must train on activities associated, explicitly or implicitly, with governing. Consistently, it restricts the category of those processable to "public" authorities "or" the proxies of a nongovernmental entity laboring in the name of the polity. 37 The medium under analysis, in tandem with its analogues along certain other latitudes in Iberian America, 38 may not target purely private violators. 39 As previously observed, it diverges from that featured in most locations throughout the continent. 40 In Brazil, an officer of the public prototypically finds herself on the receiving end. Consequently, a statutory proscription directed at the population at large would profit from immunity at the investigated junction. As prescribed, it would materially display 41 DIREITO, supra note 2, at 26 ("É de entender-se autoridade pública como aquela que exerce um cargo ou uma função estatal em qualquer dos planos da federação e em qualquer dos poderes organizados, capaz de tomar decisões que manifestem a vontade do Estado."). 42 MEIRELLES, supra note 2, at 32 ("Por autoridade entende-se a pessoa física investida de poder de decisão dentro da esfera de competência que lhe é atribuída pela norma legal."). 43  ; see also DIREITO, supra note 2, at 42 (1999) ("The writ may serve to attack an act that directly infringes upon a clear and certain right of the petitioner. What characterizes a law in the abstract is the generality of the command. If the challenged act is a non-individualized norm, the writ of security is inadmissible . . . . Acts in the abstract are those that deal with general and impersonal situations, have a generic reach, and regulate hypotheses that are contemplated abstractly.") ("O writ há de atacar o ato que, diretamente, vulnera o Direito líquido e certo do impetrante. O que caracteriza a lei em tese é a generalidade do comando; desde que ato atacado seja uma norma não individualizada, é incabível o mandado de segurança. . . . Atos em tese são os que dispõem sobre situações gerais e impessoais, têm alcance genérico e disciplinam hipóteses que neles se acham abstratamente previstas."). 53 ALVIM, supra note 3, at 351-52. 54 Ley de Amparo, arts. 192, 193 (Mex.) (1936). Article 43 of the Guatemala's Writ of Protection, Habeas Corpus, and Constitutionality Act, in turn, establishes the following: "The Constitutional Court's interpretation of constitutional and legal norms in three consecutive decisions establishes legal doctrine that other tribunals The bench has seemingly tended to handle such quests in whatever form as extraordinary motions to paralyze the ongoing process. Ergo, it has ostensibly dictated a simultaneous pursuit of any regular appeal at hand. Several commentators have objected to this take. 66 They have maintained that an independent litigation launches, obviating such regularly pursued path. 67 In any event, Direito cautions that the writ may not challenge rebuffs of an antecedent one, even if an appellate intermediation would not halt their execution. 68 Through this caution, he may be trying to preempt an endless recurrence of death and transfiguration.
In addition, those charged with "delegated" 69 tasks, directly or in the service of semi-publicly or privately founded corporations, 70 expose themselves to prosecution.
Exemplarily, they might work for a company administering transportation, electricity, or education. Manifestly, disproving the delegation in question would allow them to escape responsibility from the get-go.
At any rate, the suitor may strictly oppose their deportment as delegates. She must track "the nature of the act." 71 For instance, a business municipally authorized to tow illegally parked cars would respond for offenses arising during a tow. It would not risk liability while repairing vehicles. Naturally, the exact scope of the answerability might defy those who would have to define it. In consequence, it might generate polemics between the disputants around its definition.
Pertinently, the adjudication may not assail daily "commercially managerial" operations. 72 In all probability, it may not check the management of employees. Presumably, such a check may unreel through other means.
Sparingly evoking the focal adjective prescriptions through a single sentence, the constitutionally framed strictures do not specify who enjoys standing. They scantly suggest that it might rest in the organizational or individual holder of the defended right. Their codified complements announce that when "various" candidates fit the bill, "any one of them may" step up. 73 Furthermore, they sketch how the whole procedure unfolds.
"The initial petition" fires off the lawsuit. 74 It must articulate its specific solicitation and attach the relevant records. The petitioner may judicially wrest these from an opposite number in control of them and unwilling to hand them over. 75 She must self-evidently discover their existence before the wrest and apparently cannot capitalize on anything reminiscent of discovery for such purposes.
Her libel must land on the docket within about tetrad of months of her knowledge of the decried outrage. 76 Against "an omission," the clock starts ticking on the date in which the supposed omitted obligation toward her becomes due. 77 In the absence of a "time limit" for performance or in the teeth of a "continuing" violation, she may commence anytime. 78 On an appealable abridgement, the statute of repose begins its run after she appeals or misses the deadline to do so. By the way, it does not alter its course upon an entreaty to the answerable administrators for "reconsideration." 79 Promptly after noticing any reparable defect in the complaint, the trier must afford the filers ten days to amend. Upon instead reckoning such an amendment as unnecessary, she must assess sua sponte whether a menace or impingement (1) has likely transpired and Upon positive determinations by her on these factors, a precautionary measure must ensue. Theoretically, it should permit her to appraise the allegations deliberately and effectively. 83 Anyway, she must retroactively suspend it to the extent possible after conclusively casting them aside. 84 Apropos, it recalls United States' temporary restraining orders. 85 Like it, these may issue without the issuer alerting or hearing the adversary in advance. 86 On the other side of the scale, it may exceed them in extension. While they automatically expire after ten days., 87 it may remain in force throughout. 88 Additionally, those enjoined may not interlocutorily counter it. 89 Nor may they pursue the writ under perusal against it. 90 Appositely, the Venezuelan top tribunal has struck down such unreviewability for unconstitutionally occasioning "defenselessness." 91 In Brazil, the adjudicator must have the defendant generally notified in succession.
She must assure his receipt of the summons and denunciation against him, plus the auxiliary papers. He must answer within ten days. 92 The Public Ministry must opine before her within that very period. 93 Next, she must confirm the assessibility of the accusations on their face. Upon her confirmation of the fulfillment of this decisive condition, she shifts to the stage of