surpassing the myth of amicus curiae neutrality in brazilian law

reflections in light of U.S. Law

Abstract

The present investigates the role of amicus curiae in Brazilian law from a specific aspect, namely its neutrality. The discourse surrounding amicus curiae, especially in the context of higher courts, still is deeply rooted in the literal idea of a “friend of the court,” that is, a neutral and altruistic party whose objective and function are linked to providing assistance to enhance the administration of justice. Despite the assistance in improving the administration of justice being one of the purposes of amicus curiae, the idea of neutrality must be questioned as it does not find support in reality. It has become increasingly evident that the participation of amici curiae may be driven by their own interests, albeit extralegal, rather than solely for the purpose of assisting the court. The objective of the article, in this context, is to investigate the actual function of amicus curiae to overcome the myth of the impartiality of amici. The methodology employed involves an analysis of foreign law, particularly insights from US law, to assess whether amicus curiae has maintained its characteristic of impartiality over time and whether the way this figure has developed there exhibits any symmetry with Brazilian law. In conclusion, it is proposed to overcome the neutrality of amicus curiae, considering that this undue label may not only impose unwarranted limitations on participation but also perpetuate selectivity through the judicial process.