Structural Litigation and Public Policy-making: Bill No. 3 of 2025

Abstract

Bill No. 3 of 2025 is a proposed legislation responsible for setting the procedural aspects of structural litigation in Brazil. This type of litigation differs from ordinary causes due to their aim at resolving multifaceted claims via the restructuring of troubled institutions which, unable to efficiently provide services for the citizens and turn their rights into reality, often pose as the cause for many individual complaints. While at first, it may seem obvious that nipping the problem in the bud is better than just dealing with its undesirable consequences one by one, those problems often touch upon political problems that should be the object of discussion in political arenas rather than appreciation by unelected judicial bodies. In this paper, structural litigation is examined in the context of Bill No. 3 of 2025. It is proposed that these claims result in a type of policy-making by the Judiciary, which tips the scale on the separation of powers in their favour. The limits to which the Judicial Department can act in those scenarios are debated, and the non-adopting of the bill is defended in response to the inevitable exponential increase in judicial discretion in lieu of maintaining policy-making mostly at the Executive and Legislative powers, political by nature.