Obligation to State Reason in Seriatim Decision-Making Model: About Incompletely Theorized Agreements and Almost Completely Untheorized Agreements

Abstract

This article focuses on due performance of the obligation do state reasons, which is prescribed in Brazilian Constitution (CR/88), rule 93, IX. It investigates whether it is problematic to adopt incompletely theorized agreements as decision-making foundations in the specific case of the judicial review hold by Supremo Tribunal Federal (STF). To answer this question and to investigate its consequences, it is adopted as a theoretical reference the institute of isomenia, which, in neo-institutionalist theory of process, promotes the exercise of  symmetric  interpretation  parity  (equal  right  to  interpretate)  between  adressers  and addressees of the decision, in a way that demands from those a clear exposition of the theoretical  assumptions  that  direct  the  outcome  of  the  trial.  Considered  the  need  for contextualization of this problem within the capabilities and limitations owned by an specific institution, the article draws a distinction between the STFs and US Supreme Courts operational mode, especially regarding to the decision-making model and the way judges submits their understanding to the court. It adverts against the risk that the seriatim decision- making model, if associated with a tendency of extensive dispersed votes writing, may result in the resolution of relevant issues not just through incompletely theorized agreements, which do not implement the theoretical depth required by isomenia, but also through almost completely non theorized disagreements, given the difficulty of identifying the theoretical premise that grounds the decision. Finally, the article points to possible positive dynamic effects resulting from the theoretical depth of the votes cast in seriatim decision-making model.