UNITED STATES AND BRAZIL:
AN ANALYSIS OF THE SIMILARITIES AND DIFFERENCES BETWEEN THEIR FEDERALIST SYSTEM
GROUP A Aline Abe Cintia Ruiz Nicolau Giorgia Sena Martins Lariane Carvalho Pereira Lilian Gerolin Conway
Though some situations present us with a hybrid system lately, the
law in the United States is primarily based on case law (or
common law), which is built through decisions passed by the
courts throughout time and precedent cases that bind future
decisions. In parallel, there are statutes, treaties and regulations
passed by the legislative and executive branch, which are also
considered primary authority. Second sources of law are the
authorities to explain the meaning or applicability of primary
authorities.
The Judicial System in the United States consists of two separate
levels of courts, state and federal. The Supreme Court is the
highest court in the United States and holds jurisdiction over all
state and federal courts and original jurisdiction over a small range
of cases. The law that was allegedly violated, along with the
parties in a dispute, shall determine whether it is a matter to be
tried before state or federal courts. Most of the laws applied to
citizens daily are state laws.
One of the most important differences between the Brazilian and
the American system is that, here in the United States, each state
is free to arrange its own court system and legislate its own
specific laws. Although the Brazilian Constitution allows or even
requires that state law must regulate particular matters, the
extension of such power and/or responsibility is largely limited by
federal regulations. In other words, even if the states of the
federation present a considerable similarity in their legal systems,
they are free to create, implement and interpret its legislation, as
they understand it should be applied. In cases on the federal level,
the action begins at federal trial courts. Cases can be appealed
from there to the U.S. Circuit Court of Appeals, of which there are
13 throughout the country. Rulings of this court can again be
appealed to the Supreme Court. California is part of the 9th Circuit.
The Supreme Court has the option of whether or not they wish to
hear the case; one of the aspects that shall be evaluated before
the Supreme Court hears the case is the relevance of the matter in
dispute. The ruling of the U.S. Supreme Court is final though there
are exceptions arising out of at least one previous case.
Also, there is a fundamental difference between the Brazilian and
the American legal systems: while in Brazil only specific criminal
matters are subjected to a jury, in the United States they exist for a
variety of subjects. As a result, it seems that the American system
brings more fairness to legal decisions since a group of people will
be deciding the relevant matter instead of the mind of a single
judge. Despite the fact that jurors do not hold technical knowledge
over legal issues, their decisions seem to be closer to what the
average citizen understands as justice.
In conclusion, whereas each state has the right to create and/or
adapt its own laws, when you take a closer look at the American
System it remains clear that the sense of definitiveness of a
decision ensures its citizens of legal stability and predictability
which are fundamental qualities of an effective legal system.
GROUP B
Ivana Roberta Couto Reis de Souza Marcia Sao Paulo Claudio Andre Raposo Machado Costa Isabela Cristina Pedrosa Bittencourt
Luiz Fabricio Thaumaturgo Vergueiro Cleide Siqueira Santos Ana Carolina Dantas Daniel Almeida de Oliveira
The U.S. Legal System is an important subject for Civil Law
practioners. This is especially true in regards to lawyers from
countries, such as Brazil, where the Constitution allows for judicial
review of acts of the legislative and executive branches, and which
also have their governmental structure laid out in Constitution.
Often times, the eventual outcome in both systems will be the
same, however, the paths will be different. Thus, studying the
Common Law system allows for Brazilians lawyers enhanced law
thinking skills.
One particular topic of interest, that affects overall understanding
of the system, is the Supremacy of Federal Law1, which allows for
appellate concourse to a higher national court – the U. S. Supreme
Court – at least in most of the relevant cases, arising from
constitutional issues.
Another relevant feature in the U. S. law is the prevalence of
practical issues, given the fundamental role of the judiciary branch
in creating and interpreting law2. The realization that law is what
the judges say it is the main issue for the American realism school,
rooted in the philosophical legal pragmatism evolved in the United
States3.
Interestingly, the subject of horizontal federalism underlines the
powers of the States, as granted by the 10th Amendment, in
legislative terms, to regulate all matters not reserved to U.S.
Congress, nor prohibited to them. This legislative power is met by
correspondent subject matter adjudication by State courts in most
issues, regardless of federal courts4.
1 See Casenote Legal Briefs, Constitutional Law, New York: Aspen Law, 2002 apud GODOY, Arnaldo Sampaio de Moraes. Notas Sobre o Direito Constitucional Norte-Americano available at <www.arnaldogodoy.adv.br/publica/notas_sobre_o_direito_constitucional>. 2 See MILLER, Charles A. The Supreme Court and the Uses of History. Cambrige: Harvard University Press, 1969. 3 It was upheld by those scholars that knowledge could not be dissociated from real legal practice, and that all theoretical conception is marked by some useful goal. 4 Thus, it can be said that federal courts have limited jurisdiction. Under article III, Section 2, of U.S. Constitution, their jurisdiction includes, among other things, all cases “arising under this constitution, the Laws of the United States, and Treaties,” controversies in which the United States is a party and “Controversies between two or more States”, or “Citizens of different States”. REINHART, Susan M. Strategies for Legal Case reading
On the other hand, these rules are set in motion by the so called
Stare Decisis method, that enables parties to have prior
knowledge of general rules to the case, for reasons of
predictability, fairness, and consistency, through the following
basic principles .
1) a decision of a court is binding on all inferior courts within the
same system, 2) a decision by a three judge appellate panel is
binding on all courts from which that appellate court takes appeals
unless reversed in “en banc” proceedings, 3) No State court is
bound by a federal court‟s decision on a question of State Law, 4)
all State courts are bound by the U.S. Supreme Court‟s decisions
on federal law, 5) all Federal courts are bound by State courts
precedent on questions of State law. And yet, 6) no court is bound
by dicta5, even in decisions by higher courts in the system.
When reading cases in civil procedure, law students frequently
encounter the terms dismissal, summary judgment, directed
verdict, and judgment notwithstanding the verdict, the terms are
names of four important motions available to one or both parties,
as cases make its way through the courts system.
In conclusion, our class had the opportunity to improve the
knowledge of civil procedure within the U.S. Common Law system,
including the trial by jury cases.
Such knowledge allows for enriching not only our professional
skills, but, also, ensured a realization of the main concepts of
American legal thinking.
and vocabulary development. Michigan: University of Michigan Press, 2007. 5 Dicta refers to all aspects of a court’s decision not directly connected to
the case in file.
GROUP C
Clysses Adelina Homar Maria Clarice Maia Mendonça Pedro Melo Pouchain Ribeiro Marcia Luciana Dantas Natalia Camba Martins Patrick Sexias Lupinacci The United States of America (USA) has a Constitution that is two-
hundred years older than the Brazilian one, and was ratified in
1789. The American Constitution has been amended only 27
times. In Brazil, the 1988 Constitution is the country's 8th
constitutional text, and has, so far, received 67 amendments plus 5
revision amendments. While the American Constitution has seven
articles, the Brazilian constitutional text has 250 articles - its said to
be an "analytical text", covering a large amount of subjects. Under
the civil law system, adopted by Brazil, all legal provisions must be
enacted in written documents in order to be binding. It was a
surprise to learn that, although the USA adopts a common law
system, it also deals with enacted law, with the creation of
mechanisms to solve conflicts between them.
On July 4th, 1776, the colonies belonging to Great Britain
proclaimed independence, organizing a confederation of states.
The Brazilian independence took a different path: after declaring
its independence from Portugal, the Brazilian territory was divided,
creating states. The main consequence of this difference between
Brazil and the USA is that, while in Brazil the federal power
concentrates the most important functions, in the USA the states
seems to have broader powers than the national (federal)
government.
The U.S. Constitution - as for the Brazilian one - divided power
between federal and state government and created a system of
checks and balances, dividing the national power in three
branches: Executive, Legislative and Judiciary. The Legislative
Power follows a bicameral legislature: Senate and House of
Representatives. Bills must be approved by both houses in order
to became law. As in the USA the states have important powers
and a great amount of autonomy, it is said that one of the most
important powers of the USA Congress is the regulation of
interstate commerce. All the powers not enumerated on the USA
Federal Constitution are reserved to states. In the USA, the
resolution of conflicts between federal legislation and state law
shall be solved by the supremacy of federal law. But changes are
happening in the vertical federalism (relation between the national
power and the states), with an visible growth of federal power.
Among other changes, the courts are recognizing "implied powers"
of the federal legislative authority; the judicial review was
expanded to acts of state governments; the "Civil War
Amendments" (13th through 15th) brought procedural guarantees. It
is said that the horizontal federalism (relation between states) is
also changing, with the expansion of reach of the power of the
courts and the "full faith and credit" that has been granted to
judicial decision from other states and courts.
The USA adopted a presidential system, where the president is
vested with executive power, and he has to faithfully execute the
law. The president's main powers are: the power to negotiate
treaties, the veto power in relation to legislation approved by the
Congress and the selection of federal judges - whose approval is
subjected to Senate. In Brazil the main powers of the president
are the veto power, the power to celebrate treaties and, in some
cases, to initiate the legislative process.
The USA's national legislature has the power to establish Courts,
and the Congress may, from time to time, ordain and establish
inferior Courts. The Federal Courts have Jurisdiction in two kinds
of cases: a) diversity: controversies between two or more states
and disputes between citizens of different states; b) federal
question: controversies arising under the Constitution and laws of
the USA. The USA Supreme Court has original and appellate
jurisdiction. Over the years the federal court system has been
expanded and it consists, now, of 3 levels: a) trial (district) courts;
b) appellate (circuit) courts; c) Supreme Court. There are also
specialized courts. All states have their own Judiciary system, but
it is very common that they mimic the federal one.
As a conclusion, it can be said that, although Brazil and the USA
are Federative Republics, with a presidential system, the adoption
of the civil law juridical system by Brazil, as a contrast to the
adoption of a common law system, by the former, shows the
differences on the legal concepts and ways of dealing with legal
matters in each country - what makes the comparative study of
both system a challenge to the academics and practitioners.
GROUP D Victor Guedes Trigueiro Thiago Carvalho Barreto Leite Fausto Bruno Menezes Guilherme Augusto Barbosa Azevedo Wenderson Gagliano de Alvarenga Rafael Machado Although the U.S. legal system is based on common law, there are
several similar points with the Brazilian system, which is based on
civil Law. In one side, you have a system that is based on the
precedents that are made by the judges in real cases, but, having
many statutes that governs a bunch of situations. On the other
hand, you have the Brazilian system, which when time passes by,
becomes more and more based on the precedents that are being
decided in the superior courts. I think that we are all walking to a
mixed system, where many laws are made by the legislative
branch, but the decisions of the courts become more important,
just to give the population some kind of certain that their conduct
are legal.
The U.S. judicial system, as in Brazil, has the state courts and the
federal courts. The difference between both systems is raised in
the federation model. In the U.S. system, sometimes you cannot
say for sure if you are in front of a case that has to be heard in
state courts or federal courts. Sometimes you also don‟t know
which state has jurisdiction to hear the cases. Back in Brazil, the
rules of jurisdiction between state courts and federal courts are
very specific, and, often, you don‟t have problems to figure out
which system has jurisdiction to hear those cases.
Also, the precedent system is very different, because states have
its own laws and your own cases, and you can have different
solutions for the same case, if you are in California or if you are in
Nevada, for instance. This situation happens because the federal
model in the U.S. provides much more power to the states. In
Brazil, the most important laws that applies to people‟s life are
made by the federal legislative house. For this reason, usually we
have the same solutions for the same cases, even if you are in
different states of the federation. And in Brazil we also have a
court that has jurisdiction to solve cases that are decided in
different ways. That is a good solution to avoid conflicts of opinions
by the judges.
In the end, it‟s very interesting how the experts here in U.S.
compile the precedents. That‟s what you call restatements, which
are opinions made by professors, judges, attorneys of what they
think prevails in the cases of all country. In Brazil we also have
something like that. You call them “sumulas”, but there are some
differences. They are made only by the courts, and in same cases,
the singular judges have to follow this statements. That‟s what we
call “súmula vinculante”. Here in the U.S., the restatements are
just persuasive authorities, that does not have to be followed by
the judges.
As far as I can see, Brazilian‟s system and U.S. system are raised
in two very different systems, civil Law and common Law. But, as I
said before, both systems are getting very similar, just because
they are getting from each other your best features. From common
Law, we took the fairness of a system that allows people to know
what they can do and what they couldn‟t do, based on precedents.
On the other hand, the common Law took from the civil Law the
experience that rules the situations with laws is a good way to let
people aware about how they have to behave in front of some
situations
.
GROUP E
Ana Flávia Braga Bárbara Gimenez Fabrício Nogueira Gustavo Campos Julia Cadete Mariana Montenegro This paper aims to discuss some topics related to the United
States legal system. The focus will be some aspects of Common
law, as origins, stare decisis and political limitations.
The origins of Common law are found in England (King‟s Court)
where judges used to travel the country to decide the cases in
different locations. To avoid inconsistency and simplify later cases,
they developed the principle of stare decisis that binds future
decisions in similar cases according to precedents. The concept
that the decision stands satisfies the desire for consistency,
fairness and predictability.
In the United States, a decision of a court binds all inferior courts
within the same system – federal or state. Thus, all state and
federal courts are bound by the U.S. Supreme Court‟s decisions
on questions of federal law, but no state court is bound by a
federal court‟s decision on a question of state law. Although the
decisions of another system are not mandatory, they may be used
to sway the judge in a first impression case as persuasive
authority.
Today, it is recognized that judges have a lawmaking role, but
there are some political limitations: their decisions can be changed
by statutory “correction” i.e. the legislator has the power to pass a
law that supersedes the rule created by the courts. One of the
greatest challenges of the Common law system is the problem of
retroactivity. Because the judicial decisions are sources of law,
sometimes there is no prior access to a rule of law before its
application.
Despite the referred problems, Common law system provides
consistency, fairness and predictability through stare decisis.
These virtues inspire some Civil law countries, as Brazil, to adopt
the binding authority of the precedents as a way to simplify later
cases and guarantee legal certainty.
GROUP F
Ana Cristina Velloso Cruz Cid Arruda Aragao Michelle Marry Marques da Silva Miquerlam Chaves Cavalcante Reginaldo Sa Vladia Pompeu da Silva The Brazilian Federalist System, form of state formally defined in
1889, was based in the North-American model of federalism. The
most distinguishing differences found today between these two
systems are due to the way these models were created. While the
North-American federalist system was generated by the union of
independent states, that decided to create a central power in order
to get more protection against a common enemy – the United
Kingdom – the Brazilian federalist system, on the contrary, was
born with the intent to mitigate the power of the central
government, since this was at the end of a long lasting period of a
very centralized monarchy. The Brazilian provinces reclaimed
more power from the central government, dissatisfied with the
authoritarian way of government that had being taken place
before.
Even though the two countries' model of federalism share a great
number of similarities, the difference in their origin explains a lot of
the strong differences that can be noticed between both of them.
Though the North-American model has been suffering a lot of
change since its creation, especially with the growth of the central
government‟s power, its states still detain much more power than
their Brazilian counterpart.
Even with the statement of Brazilian federalism, the fact is that the
state institutions were too weak and could not get the enough
strength to contest the central government overpower. The
proclamation of the Brazilian republic allowed some strengthening
of the powers by the states of the federation, which has being
growing over the years. Nowadays the overpower of the federal
government is still very noticeable.
The Constitution of the United States of America is a very short
document. It only states the basic individual rights and government
rules, but leaves to the states all the remaining power. The
Constitution of the Federative Republic of Brazil of 1988,
otherwise, states an enormous amount of power for the federal
government. It also establishes – as the U.S. Constitution – that
the remaining powers belong to the states. However, because
there are so many powers already given to the central government
and since it is possible to give a very broad interpretation in favor
of the federal government, this makes the powers of the individual
states very limited.
The state governments in the U.S., when compared to the state
governments in Brazil, have great powers. They can establish,
almost entirely, all the rules over contracts, torts, family law,
commercial law, regulation of professions, business entities and
most ordinary crimes. In Brazil, most of the subject matters are
bound to the federal government or are concurrent of all the
federation members (Union, states and municipality).
Here‟s a great example of the difference in power distribution
between both countries: while in Brazil all the procedural rules of
election – even the ones to elect the governors – are defined by
the Constitution and by federal law. In the U.S., these rules are
mainly established by the states themselves.
Though the history will always play a part in the shape of the
federalist model of each country, it seems both of them can learn
from each other‟s system of law. In what concerns Brazil, there
must be an effort to give more power to the states, which is the
only way to better rule a continental size country as Brazil. The
study of the United States system of law and the experience of this
country is an unpaired starting point for this purpose.
GROUP G
Cesar Cardoso Patricia Freitas Vasconcellos Duarte Eugenia França de Oliveira Nemezio Schontag Paulo Cesar da Silva Rosana Gavina Barros Horostecki Malin Fagerlund The United States, as known today, originated from 13 colonies.
The first legal system was the Articles of Confederation but it failed
because there was no real central government. As there was no
national government, the states were forced in 1789 to create a
Constitution in order to assure national and states‟ interests.
The Constitution of 1789 creates three branches of government: (i)
Legislative (article I) with a bicameral legislature formed by the
House or Representatives and the Senate; (ii) Executive (article II)
which is represented by the President who is charged to faithfully
execute the laws and who has the power to negotiate treaties and
to select all of the Federal Judges and he also has the veto power
over legislation ; and the (iii) Judicial (article 3) formed by the
Supreme Court, the Federal courts and the State Courts.
A system of checks and balances was established in order not to
give too much power to any of the branches of government.
Through this system, for example, the veto power of the President
over the Legislative Branch is subject to approval of both Houses
in some instances.
The sources of law in the United States are enacted law
(constitution, statutes, treaties and court rules) and Caselaw
(caselaw interpreting enacted law) and Common Law. Common
Law is made by Judges guided by perception of public policy. The
Legislature can codify or abrogate the Common Law.
Also, the concept of what constitutes primary and secondary
authority has great importance to the American system. Primary
authority is binding and could be defined as a primary source of
law such as codes, case law, constitution and treaties. The
secondary authority is persuasive and consists of materials that
explain and analyze the law such as textbooks and restatements,
for example.
Precedent plays a major role in American law. In order to enforce
the principles of predictability, fairness and consistency, stare
decisis became a crucial point in understanding how the Common
Law system works by determining that precedents have to be
followed, binding, thus the courts to their own previous decisions.
Even though higher courts do not have to follow the precedent of
lower courts, nor do courts in the same level have to follow each
other‟s precedents outside of the same jurisdiction, all of the
decisions enacted by any of those courts constitute persuasive
authority in any court of the United States demonstrating once
more the power that the precedent has in American law.
Even though the United States are still a country that follows the
Common Law, it has been increasingly becoming driven to Civil
Law concepts. Nothing supersedes the power of the United States
Federal Constitution and statutes, codes and other kinds of
regulations have been increasingly enacted which makes judges
rely increasingly more in codified law rather than precedent.
Different from Brazil, whose system looks like more uniform
because of the control exercised by the federal executive,
legislative and judicial branches, in the United States the main
power is reserved to the state executive, legislative and judicial
branches, resulting in a diversity of statutory laws and common law
rules throughout the country
GROUP H
Amadeu Braga Batista Ana Carolina Miguel Gouveia Léa Émile Maciel Jorge de Souza Rafael Michelson Renata Cordeiro Uchôa Forêncio Amadeu Braga Batista The class Introduction to the U.S. legal system is essential for the
initiation of the legal studies of any foreign students about
American law. In addition to providing an overview about the main
existing institutions, as well as the fundamental concepts, it is
important to provide an environment for understanding the spirit
that inspires this system.
The Legal System of U.S. is established over three pillars: the U.S.
Constitution, the Federalism and the harmony among the branches
with the checks and balances. The Constitution itself is the result
of the bound of the thirteen dissident colonies, which fought for
independence on British rule. The consolidation of the Constitution
came in 1789, almost eight years after the “Declaration of
Independence”, on July 4, 1776. Over two centuries after the
Constitution was ratified, it was amended only 27 times – which
shows the strength of the principles and rules established in the
Constitution and the acceptance of the American people on its
determinations.
The Federalism in U.S. is very strong since states were not
created by the Constitution. They existed before it. The
Constitution was a result of the consent of the 13 separate British
colonies. However, the main rules of Federalism are established
on the Constitution, especially in its 10th Amendment – “The
Powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people”. The evolution on the American
Federalism implicates in some changes both horizontally or
vertically. In the vertical Federalism, it is possible to observe the
growth of Federal Power and its effects, specially the concurrent
power to make laws and adjudicate disputes and questions of
possible federal preemption.
The harmony among the branches – Legislative, Executive and
Judicial – is maintained by the checks and balances principle,
which means the power that each branch has on the other in order
to keep consistency to the system. The Constitution enumerates
the powers of each branch and the control each of them has on
the other.
The American Legal System is based also on common law
(derived from the British Common Law, which was in the beginning
based on the following: once similar disputes were solved in an
area, the rule applied to them became law to other similar cases in
the same region) which can be defined as the legal system in
which the rules and decisions are based on precedent, without,
however, disregard the relevant peculiarities of each case. The
principles of common law are not established in statute, but rather
emanate from decisions of courts of various states. Common law,
also referred to as judge-made law or case law, arise out of
specific legal situations. General legal principles derived from
these individual decisions are then applied to other similar or
analogous case.
The perpetuation of the system of common law is due to an
important concept: stare decisis. According to this fundamental
idea, the court for the sake of predictability, fairness, and
consistency, must apply the well-settled precedent or long-settled
principles established in previous case to future similar or
analogous cases. Important to note that the court is bound by its
own decisions, however, there is no binding to previous cases
decided by courts in other jurisdictions. It should be noted that, in
the state, the absolute supremacy of the decision belongs to the
state Supreme Courts, as on federal supremacy belongs to the
U.S. Supreme Court. Note that, regardless of whether the
requirement for binding with previous decisions, both the federal
and state levels, there may be overrule decisions if there are
enough compelling reasons to do so. May be cited as an example,
the possibility of the Court overrule a decision antecedent whose
defense has no more sense in the new social context or, if the
consequences of that decision have been negative.
In this class, was examined in a little more succinct other
fundamental concepts as important as those mentioned above to
understand the American legal system, such as Hierarchy of
Federal Courts, Jurisdiction, Restatements and Civil Procedure.
Thus, the entire contents learned had a primordial importance for a
better understanding of American legal thought and development
of a legal reasoning fit into this system, as well as to support the
future study and further, especially with regard to institutes and
converging concepts with Brazilian law, in view of the growing
closeness between systems based on common law and civil law.
GROUP I Ana Carolina de Souza Correa Ana Luiza Mendonca Soares Franciana Barbosa de Araujo Gustavos Fontana Pedrollo Nadja Lima Menezes Naiara Rezende Although Brazil and the United States of America (USA) do share
a federalist system, it is essential to point out a distinction on each
of their roots: whilst in Brazil federalism was born from an unitary
system of government, in the USA federalism was born as an
outcome of a previews confederation, in which the highest
identification among their members was the resistance to British
authority at the local level. In other words, whereas in Brazil states
were created by the constitution, in the USA they existed before it.
The creation of the United States of America is over all a
consequence of the intention to conciliate democracy and local
power, with the necessity to raise up a country big and strong
enough to assure its ideas of independence, freedom and
economic growth.
In the U.S. political system, republic and democracy are evidenced
by the presidential system and the emergence of the legislative
branch. Federalism, guaranteed by the supremacy of the
constitution, generates a system of three separated branches, to
control and limit the exercise of the central power. Federalism
enabled local and central power to coexist, generating the
complexity of more than one legal system in one only country.
These are the typically modern characteristics of the USA republic,
which do not have always peacefully lived together to another
characteristic: a specific and pre-modern juridical culture, the
Common Law. Common Law, according to Roscoe Pound, is
essentially a way of legal thinking, a way of solving juridical
problems through the application of precedents to new cases by
legal reasoning.
The coexistence of federalism, separation of branches, supremacy
of the constitution and respect to the legislative branch as an
instance of representation of society, with the pre-modern juridical
cultural heritage of Common Law, have demanded from the jurists
and the American society intelligence, prudence and creativity.
Such characteristics have served, if not for having always the best
decision, at least as a rich experience to the whole world.
GROUP J Carlos Lopes Cristiane Cantarelli Pouey Flavia Izidoro Paulo Ronaldo Ceo Renata Beckert Isfer United States of America uses common law to solve legal issues.
At common law, previous decisions made by courts create the
rules that must be followed by the people. Some subjects are ruled
by statutes, but even in these cases, precedents are important to
solve questions regarding some aspects that may not be clear or
fully disclosed by the statute.
Originally, common law was imposed by William, the Conqueror, in
1066. Before common law, judges used to give different decisions
to the same matters, which was not fair and created problems in
the kingdom. Common law was the solution found to give equal
solutions all over England.
When England ruled over the colonies in North America, they used
the same system to solve legal issues. Most colonies adopted
common law after the independence of the United States of
America.
State and Federal constitution provide for the establishment of the
court system and give courts judicial power. In most states and in
the federal system, courts are organized in a hierarchy of trial
courts, appellate courts and a supreme court.
Stare decisis is the policy of courts to stand by precedent and not
to disturb a settled point. In another words, courts are bound by its
previous own decisions. In the same jurisdiction, decisions made
by hierarchically superior courts are binding to the lowers courts.
State courts are never bound by decisions made by federal courts
on state law. Decisions made by courts in other jurisdictions, obiter
dicta and restatements are not biding, but may be used as
persuasive authority. Prior decisions may be overruled if courts
find compelling reasons to do it, such as negative consequences
originated from the prior decision.
There are four key motions in civil litigation process. Motion to
dismiss, also called demurrer, may be filled when defendant thinks
the plaintiff does not have enough information to show that there is
a legal basis for a suit. Motion for summary judgment may be filled
either by the plaintiff or the defendant, after the discovery. It
usually is granted in issues about the law, without contradictory
facts. Directed verdict can be filed if the plaintiff or the defendant
thinks that the other did not have enough evidence to support its
claim. After the jury gives the verdict, the losing party can file a
Judgment Notwithstanding the Verdict if the evidence is not legally
sufficient or contrary to the law and no reasonable person could
decide in favor of the non-moving party.
United States uses the system of checks and balances. Art. I of
the Constitution gives all legislative powers to the Congress. It also
enumerates powers of national government, as of to issue money,
establish postal system, create courts, raise army and navy,
declare war, collect taxes, and spend money for the general
welfare and regulation of interstate commerce. All the powers not
enumerated are reserved to the states.
President is vested with executive Power and is charged to
faithfully execute the laws. It was also granted to the President the
power to negotiate treaties, power to select all federal judges (both
subject to Senate approval), veto power over legislation, which is
subject to override by 2/3 majority in both houses.
TESTIMONIALS
“Thomas Jefferson School of Law is a brilliant school with great Professors and helpful staff. It has been a wonderful
experience. I hope to come back here.”
Aline Abe
“The „Fundamentals of U.S. Law‟ course at Thomas Jefferson School of Law summarized American Law, in a technical
language, yet also in an accessible way. It was possible for each one of us, through the learning of the U.S. Legal System
and its principles, to learn the respective area of interest for an assortment of professionals.”
Amadeu Braga Batista Silva
“Thomas Jefferson School of Law, in partnership with the School of the AGU, undertook pioneering a program to
introduce the American Legal System to Federal Attorneys in Brazil, with important exchange of information on the
fundamentals of American Law and legal practice encountered everyday in the U.S., in particular, the State of California.
The mutual exchange of knowledge and experiences between students and professors was extremely enriching and
exceeded my expectations. In fact, all of us who participated in the program, were enlightened to the debate about the
effectiveness of the U.S. federal model, and especially on the objectivity and pragmatism with which issues are addressed
in U.S. Courts.”
Ana Gouveia
“Substantial! This is how I can analyze the „Fundamentals of U.S. Law‟ provided by the Thomas Jefferson School of Law
in San Diego last July. Highly trained teachers, equipped with a deep understanding of the issues raised who were always
willing to answer the questions of students. An efficient, yet substantial course, equipped the listener with enough
knowledge to understand how the common law in the United States of America works!”
Ana Carolina de Sá Dantas
"I am very grateful for the opportunity to attend the course „Fundamentals of U.S. Law‟ at TJSL. I was pleased to learn
more about the law in the United States with excellent professors. It was a very interesting way to improve my knowledge
and it will have practical application in my work. I hope I can go deeper in that knowledge. Thank you TJSL and EAGU."
Carlos Côrtes Vieira Lopes
"TJSL is a great place to start your journey into the American legal system. Outstanding facilities, amazing professors and
a very dedicated staff made my stay here in San Diego a fantastic experience."
Cintia Ruiz Nicolau
“Having studied at Thomas Jefferson School of Law was a great experience, so I recommend it to anyone who wants to
improve their knowledge about the U.S. legal systems.”
Claudio André Raposo Machado Costa
"The course was an enriching experience in my life, bringing me a broader vision of the American legal system. The
quality of professors and modern school facilities made a great difference in the development of the program."
Lariane Carvalho Pereira
"In my opinion, the experience at Thomas Jefferson School of Law was fantastic! I had a great time as I was able to
improve my knowledge about the American law and the American culture. The campus's structure is amazing and the
quality of the teachers is very high! I'm very proud to be part of this program and recommended it to all Brazilian
attorneys!"
Léa Emile M. Jorge de Souza
"This year's Legal Education Exchange Program (LEEP) was one of the best academic experiences in my whole life.
Apart from the flawless classrooms and library, the faculty itself was the greatest and brightest feature of the course. One
month to remember for a lifetime."
Luiz Fabricio Thaumaturgo Vergueiro
"This summer course was important for improving my knowledge of the U.S. law by bringing a complete overview of the
functions of legislative, executive and judiciary branches of the United States of America..
Michelle Marry Marques da Silva
“The course at Thomas Jefferson School of School Law has improved in my career. The knowledge and skills learned in
this amazing month will be widely put into use in my work. Besides, the cultural exchange has enriched many aspects of
my private life. In a nutshell, this experience was worth a lot!”
Miquerlam Cavalcante
“It is impressive how a very short term course could enable us to understand and be capable of interacting with the
American legal system. Not only was the content strategically picked, but we also could actually catch very good samples
of the way Americans think about society and law.”
Rafael Michelsohn
“In my opinion, the content delivered in the course „Fundamentals of U.S. Law‟ was extremely important to understand the
main principles and institutions in the U.S. legal system. This initial contact enriched our legal reasoning and our critical
thinking, beyond what will be essential for our future studies. Our participation was undoubtedly a rich experience!”
Renata C. Uchoa Florêncio
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