Author:

Carolina Moraes Migliavacca

Abstract:

This work presents the reader with a modern interpretation of the amicus curiae institution. Aware of the decades-long existence of this form of third-party participation in other people’s legal proceedings within the Brazilian civil procedural system, the author advances an interpretation of the institution based on Article 138 of the Brazilian Code of Civil Procedure, which introduced the literal and direct provision for amicus curiae. Addressing the problem of the sometimes unsystematic and unproductive use of amicus curiae in specific cases before first-instance courts, the author proposes an organization of the “friend of the court” profile based on its two functions: the instructive and the representative. If the same institution acts with different purposes in certain proceedings—sometimes to provide technical information about the subject matter of the litigation with peculiar specificity, and sometimes to represent a group of society with an interest in the judgment of a case that has social repercussions—then these divergent functions should receive different treatments. Thus, and through a comparative study of the United States experience, the author proposes specific procedural requirements and techniques for the amicus curiae to act as a third party with an investigative or representative function – without ignoring the possibility of merging these two functions into a single entity, a hypothesis addressed by the author without losing didactic rigor. The book is intended for both legal researchers and practitioners working in all branches of the legal professions.