A adaptação da tutela jurisdicional ao fenômeno da repetição e a técnica de julgamento por amostragem

Abstract

The objective of this paper is to analyze the tendency of adaptation of the judicial review to the phenomenon of repetition, typical of our contemporary society and, as consequence of such adaptation, the creation of the ruling based on test claims, which renders adequate treatment to repetitive lawsuits originated by mass litigation. The origins of the phenomenon of massing social relations will be analyzed, as well as the culture of repetition and the considerable increase in recurring to the courts in search of jurisdictional tutelage, which resulted in a historical crisis on the administration of justice in the Brazilian legal system. The shortfalls of traditional litigation procedures and collective litigation to solve the problem of adequate judicial review to repetitive lawsuits will also be analyzed. As a result of these issues, and considering, on the one hand, the influence of the tendency to solve collective issues by aggregation techniques of judicial review, and on the other, the raising appreciation of jurisprudence, it was necessary to develop adequate procedural techniques to deal with mass litigation, having its constitutional foundations on the reasonable duration of the lawsuit, predictability and isonomy. Finally, this paper will examine the peculiarities and polemic issues of the ruling based on sampling technique as applied by the Brazilian superior courts, as well as the new technique as presented on the Bill of the New Code of Procedural Law. The conclusion will support that the adoption of procedural techniques aimed at decisions on repetitive lawsuits is essential to an effective jurisdictional tutelage on such cases, especially when considering the results already obtained by existing techniques