INTERNATIONAL :When Procedure Becomes a Shield: Defensive Jurisprudence from Brazil to U.S. Foreclosure Courts A comparative analysis of Lenio Streck’s critique and the experience of Scott Erik Stafne in foreclosure courts and the Washington State Bar Is defensive jurisprudence a carte blanche for illegalities? Yes! Lenio Luiz Streck

When Procedure Becomes a Shield: Defensive Jurisprudence from Brazil to U.S. Foreclosure Courts

A comparative analysis of Lenio Streck’s critique and the experience of Scott Erik Stafne in foreclosure courts and the Washington State Bar

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Abstract 

Across legal systems, different languages and doctrines often hide the same pathology. What Brazilian legal theorist Lenio Luiz Streck calls defensive jurisprudence—the systematic use of procedural filters and generic reasoning to avoid deciding the merits—finds a striking functional equivalent in the United States, particularly in foreclosure litigation and attorney disciplinary systems. This article draws a comparative line between Streck’s diagnosis of the Brazilian judiciary and the situation reported by Scott Erik Stafne in Washington State, showing how “efficiency” can mutate into institutional immunity.

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1. Streck’s Diagnosis: When Courts Defend Themselves Instead of the Law

In “Is defensive jurisprudence a carte blanche for illegalities? Yes!”, Lenio Streck exposes a structural problem: courts increasingly rely on procedural barriers, admissibility filters, and standardized decisions to avoid confronting concrete arguments and evidence.
The core of Streck’s critique is not ideological but epistemic and constitutional:

• Decisions are copied and pasted, changing only article numbers or headings.

• Context disappears; reasoning becomes abstract, vague, and interchangeable.

• Merit is never reached, even when liberty, property, or fundamental rights are at stake.

• The duty to give reasons becomes performative, not substantive.

For Streck, this practice violates the very idea of adjudication. A justification that could apply to any case explains no case. Law loses its dialogical character and turns into bureaucratic denial.

His warning is blunt: defensive jurisprudence functions as a silent authorization for illegality, because what is never examined is never corrected.

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2. The U.S. Parallel I: Foreclosure Courts and the Architecture of Avoidance

Although the legal vocabulary is different, the functional mechanism observed by Scott Erik Stafne in U.S. foreclosure litigation—especially in non-judicial foreclosure regimes—mirrors Streck’s critique.
Instead of saying “your claim is wrong because of X, Y, and Z”, courts often say:

• “You missed the procedural window.”

• “You failed to seek the correct injunction.”

• “Your claim is waived.”

• “The record is insufficient.”

• “This issue cannot be raised at this stage.”

The result is structural: the process becomes an obstacle course. Allegations concerning chain of title, standing, trustee misconduct, or systemic irregularities are not refuted; they are procedurally neutralized.

Just as Streck describes in Brazil, the legal system shifts from truth-seeking adjudication to procedural survivalism. The foreclosure may proceed not because it is lawful, but because it has become procedurally unstoppable.

This is defensive jurisprudence in another accent.

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3. The U.S. Parallel II: Discipline as a Secondary Filter of Dissent

A second layer emerges in the attorney disciplinary context. In Washington State, lawyer discipline is administered under authority delegated by the Supreme Court, through the Washington State Bar.
Here, the Streckian pattern appears in a different form:

• Structural or institutional criticism raised by an attorney may be reframed as a problem of tone, form, or professionalism.

• The debate shifts from “is the system violating rights?” to “how did the lawyer speak about the system?”

• Substantive allegations risk being sidelined by formal ethical framing.

Functionally, this mirrors defensive jurisprudence: the system protects itself by changing the forum and the question. What cannot be answered on the merits is absorbed into procedure or discipline.

Again, the issue is not whether discipline exists—it must—but whether it becomes a substitute for confronting uncomfortable truths.

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4. The Common Core: When “Efficiency” Replaces Due Process

Streck asks a devastating question: if courts know the disease, why do they refuse the cure offered by procedural and constitutional theory?
Applied transnationally, the answer seems similar:

• Efficiency rhetoric replaces deliberation.

• Filters replace judgment.

• Procedural closure replaces substantive engagement.

In both Brazil and the United States, defensive mechanisms are justified as necessary to manage caseloads. But the cost is high: law becomes opaque, citizens lose intelligibility, and accountability evaporates.
What remains is not the rule of law, but the rule of process.

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5. Conclusion: A Transnational Warning

Lenio Streck’s critique is not a Brazilian anomaly. Scott Erik Stafne’s experience suggests it is a global institutional reflex: when legal systems feel threatened—by volume, by complexity, or by criticism—they retreat into procedure.
The danger is profound. When courts stop explaining why and focus only on how to dismiss, legality becomes optional, and injustice becomes administratively invisible.
Defensive jurisprudence, wherever it appears, is not neutrality.
It is a choice—and a costly one.

ARTICLE 

Is defensive jurisprudence a carte blanche for illegalities? Yes!
Lenio Luiz Streck

December 11, 2025, 8:00 AM

The combative lawyer Paulo Iotti, like myself, faces every day the defensive jurisprudence that mutilates the rights of thousands of people:

(i) How many people are imprisoned or have lost their rights because of STJ Precedent 182 (a precedent created in civil law and used in criminal law)?

(ii) How many people are imprisoned or have lost their property because of Precedent 7?

(iii) How many people have lost their freedom and property because of STF Ruling 339?

(iv) Or the "qualified-persuasive precedents" thesis?

(v) Or the non-compliance with article 489 of the CPC (315 of the CPP)?

Specifically regarding the non-compliance with article 489 of the CPC (Brazilian Code of Civil Procedure), Iotti uses a preliminary AREsp (Special Appeal) against the standard decisions of the Presidency of the TJ-SP (Court of Justice of São Paulo) denying the admissibility of special appeals (this is repeated in other courts). One of the precedents of Minister Sepúlveda Pertence that he cites is found in a work by Luís Roberto Barroso from 2006. Obviously, the STJ (Superior Court of Justice) always ignores the preliminary appeal.

Here is an excerpt from the standard decision of the Presidency of the TJ-SP (Court of Justice of São Paulo), in which the court only changes the number(s) of the article(s) invoked by the REsp (and puts the number in the topic title):

“The alleged violation of the cited provision was not demonstrated, as the legal requirements for resolving the factual and legal issues of the case were met by the Court of Appeals when it stated the premises on which the decision was based. In this sense, the Superior Court of Justice has been deciding that 'the mere allusion to provisions, unaccompanied by the necessary argumentation that supports the alleged violation of federal law, is not sufficient for the consideration of the special appeal'” (Appeal in Special Appeal 1871253/DF, rapporteur Justice Marco Buzzi, in DJe of 9/8/2022).

A decision to dismiss an appeal based on such "reasoning" is worth as much as a three-dollar bill. This needs to be said. It is unacceptable that a person's freedom or any right should be treated with a generic type of decision that applies to any ruling.

Where is the contextualization of the citation? That's the crux of the matter . The CPC itself states that any decision that uses a basis applicable to any decision and employs terms without specific details will be null and void (those who continue reading will see this better later). Article 489 also states that the decision must address all arguments – and here comes the crux of Topic 339. The lawyer has no way to escape.

Paulo Iotti demonstrates the existence of nullity due to a violation of the provisions of article 489, §1, III, of the CPC, insofar as he used the very same vague and generic wording used to deny the processing of special appeals in general, without ever addressing their specific reasons and, thus, violating the legal mandate of article 489, §1, III, of the CPC, which characterizes its nullity, insofar as he resorted to "grounds" simply copied and pasted from general proceedings that do not apply to the present case.

And Iotti continues, in one of his cases: in fact, what systematically occurs in the courts of the Republic — and this should be resolved by the STJ — is the denial of the validity of article 489, §1, III, of the CPC, by using vague and generic reasoning , which only alters the number of the provisions invoked by the special appeal and only in the title of the respective topic , using the very same argumentation (again, vague and generic), which is copied and pasted in each and every decision denying a special appeal .

Ultimately, this is precisely what is prohibited and deemed null by article 489, §1, III, of the CPC, which states that a decision that " invokes reasons that could justify any other decision" is not considered reasoned . This is a disrespectful decision towards the legal profession, which belittles the appellate work of presenting the necessary arguments that effectively explain the factual situation, etc.

Wittgenstein said, in the Philosophical Investigations:

(i) It is the context that gives meaning to the text.

(ii) Warat already ironically stated: if a law prohibits toplessness, that law has a completely different meaning if applied in Copacabana and on a nudist beach.

(iii) And I say: saying that "legitimate self-defense cannot be measured millimetrically" means nothing, unless the specific case gives meaning to the text.

A reading of Fr. Müller would also be very useful: it is the concrete case that gives meaning to the text. Texts do not exist in their textuality. They need context.

I'm sharing this here so we can understand the magnitude of the crisis. What I'm presenting here symbolizes the daily battle against the arbitrary filters imposed by the courts.

It's an obstacle course. And when admissibility is achieved in the State Courts of Appeals, there's a risk of the Special Appeal being dismissed by a single judge — in this sense, I have long proposed that, in cases of positive admissibility judgment at the origin, single-judge decisions that contradict the positive judgment obtained at the second instance should be prohibited .

The question that should be answered by legal scholars is: what was the point of including Article 489, paragraph 1, and its six clauses (now replicated in Article 315 of the Code of Criminal Procedure) in the Code of Civil Procedure—which are the most frequently disregarded—alongside Article 926, which demands coherence and integrity? The way clauses II and III of Article 489 are disregarded is scandalous. This is without even considering the other clauses.

To refresh readers' memories, I'm listing the clauses here (which represent a true set of criteria to avoid arbitrariness):

The decision will not be considered well-founded if, for example:

(i) To merely cite or reproduce a normative act without demonstrating its relation to the specific case.

(ii) To use indeterminate legal concepts without justifying their application to the case.

(iii) To fail to analyze all arguments that may refute the judge's conclusion.

(iv) To invoke precedents or summaries without identifying their determining grounds or demonstrating their suitability to the specific case.

(v) To fail to apply or analyze a thesis established in repetitive cases, when argued by a party.

(vi) To fail to address all arguments raised in motions for clarification, if they are essential for resolving the conflict.

These clauses, if strictly followed, should bring about a revolution in the field of justification for decisions. However, the system has made a Darwinian adaptation, circumventing the duty to provide justification. I ask:

(i) How many motions for clarification are dismissed daily in clear disregard of articles 1022 and 489?

(ii) How many people are imprisoned because of a lack of proper reasoning?

(iii) More seriously: if the Court of Justice disregards article 489 (or 315) and the Superior Court of Justice does not correct it, the matter should, ultimately, be resolved by the Supreme Federal Court , since disregarding the provision that requires reasoning is clearly a violation of article 93, IX, of the Constitution— interestingly, even in these cases—defensive jurisprudence adapts in a Darwinian way, creating the thesis of "reflexive unconstitutionality." Thus, when an acquired right is violated, it is said that this violation is not unconstitutional because the Code reproduces the Constitution. Now, paradoxically, if a code copied the entire Constitution, would there be no more unconstitutionalities? A good question.

(iv) Wouldn't it be time for the OAB to file a Declaratory Action of Constitutionality (ADC) regarding the constitutionality of articles 489 of the CPC and 315 of the CPP, including for violation of binding precedent 10 and article 97 of the CF, for failing to apply a law without declaring its unconstitutionality?

(v) Let's look further: the STF has Topic 181, which addresses the admissibility requirements of the Extraordinary Appeal and emphasizes that invoking non-compliance with infra-constitutional matters causes the STJ to dismiss the claim at the origin. But, sometimes, non-compliance with infra-constitutional matters is directly related to the Constitution—especially if it relates to the reasoning (consider, for example, the violation of due process or res judicata). And what happens when a party invokes a partial nullity without textual reduction? Or an interpretation in accordance with the Constitution? They always invoke Precedent 636, which states that an Extraordinary Appeal based on the principle of legality is not admissible "when its verification presupposes reviewing the interpretation given to infra-constitutional norms by the appealed decision").

The Superior Court of Justice (STJ), in denying admissibility to an Extraordinary Appeal (RE), states that when it does not consider a Special Appeal (REsp), it means that the admissibility requirement was not met.

 Therefore, even if the RE requests a finding of material unconstitutionality, the STJ does not admit it. This generates appeals and internal appeals to the STJ itself, which, as we know, only lead to a reiteration of the appealed decision, copied and pasted, with that vague and generic standard phrase stating that the appeal did not invalidate it. Furthermore, the STJ is not prevented from making interpretations in accordance with the Constitution or declaring partial nullity. It is the guardian of infra-constitutional law. And if it errs? Doesn't the party have to appeal to the Supreme Federal Court (STF)? And why does the STF not allow it or place so many obstacles that make this task practically impossible? Have we done away with diffuse control?

Finally, this column is a tribute to all the lawyers who face the obstacle course to try to "take" an appeal to Brasília . This is without mentioning the Appeals Panels, from which, broadly speaking, no appeal is even possible.

But if we know all this, if we know about the disease, why don't the courts make use of the antibiotics provided by legal theory, procedural theories, and constitutional theory?

Lenio Luiz Streck

He is a professor, legal consultant, lawyer, and founding partner of Streck & Trindade Advogados Associados: www.streckadvogados.com.br

COMMENTS

Edson Vinicius Santos Vaz Ronque said:

15/12/2025 at 16:00:54

The stress I feel every time I read in a ruling, "the judge doesn't need to address all the arguments..." easily takes at least a week off my life expectancy. Because, okay, I understand that to a certain extent. If the lawyer makes arguments A, B, and C to arrive at conclusion D, and the arguments are structured as "if A then B," "if B then C," and "if C then D," okay, if any of the arguments is false, there's no need to comment on the others, since if just one fails, the whole chain breaks and conclusion D is impossible. Or if it's structured as "if A+B+C then D," then any argument being false makes the conclusion false as well. But people even use it when it's structured as "If A then D," also "if B then D," and also "if C then D." And it's not uncommon for the judge to issue a "If G then F" in the ruling, even though G and F are incompatible with all parts of the process.

Fábio de Oliveira Ribeiro said:

12/12/2025 at 08:11:12

The problem with Big Tech is their business model. These companies helped create and rely on ambitious people who will do anything to make money, including clickbait by creating content that generates high emotional engagement: fake news, political hate, racism, anti-vaccine campaigns, sexism, far-right propaganda, etc. The money honestly earned by the lumpen elite who depend on the clickbait business model of Big Tech is perhaps a much more serious problem than addiction, because it distorts democratic political systems. And in this case, the economic incentive obtained by the clickbait lumpen elite is immediate and is interconnected with the interests of the technology companies themselves. In the Judiciary, the Big Tech business model cannot be applied, but the transformation of the Courts into internet platforms has created the legal lumpen elite. It is composed of judges and prosecutors who issue decisions chasing clickbait from the press (media visibility). They distribute likes and dislikes to sections of legislation and even the constitution according to what they believe is most likely to please the market, forgetting that there is a qualitative difference between the law and the fake law they practice. Judges who make memes during trials or who use memes in their decisions are the most grotesque examples of the legal lumpen elite created by the dynamics of the platformization of the Judiciary.

Rejane Guimarães Amarante said:

12/12/2025 at 08:05:36

Because legal experts like yourself, Dr. Lenio, uphold the *constitutionality* of Supreme Court Inquiry 4781. After that, all kinds of illegality and arbitrariness were *permitted* by your *hermeneutics*, doctor. - signed Rejane Guimaraes Amarante

Josenilson Rodrigues said:

11/12/2025 at 23:03:24

One of the best and most necessary texts I've read lately in this Conjur. Excellent! Legal theory, far from being a merely academic or speculative exercise, has an indispensable social function. In contexts of institutional closure and degradation of legal rationality, such as what we are experiencing with the consolidation of defensive jurisprudence, theory reveals itself as a space of epistemic, critical, and ethical resistance. It is through theory that it becomes possible to name the dysfunctions, understand the mechanisms of procedural exclusion, and propose hermeneutical paths capable of rescuing the commitment of law to intersubjectivity, to listening, and to recognizing the other. The Judiciary, under the pretext of efficiency, has been operating an arbitrary and dehumanizing filtering of demands, seriously compromising access.

Josenilson Rodrigues said:

11/12/2025 at 23:02:03

One of the best and most necessary texts I've read lately in this Conjur. Excellent! Legal theory, far from being a merely academic or speculative exercise, has an indispensable social function. In contexts of institutional closure and degradation of legal rationality, such as what we are experiencing with the consolidation of defensive jurisprudence, theory reveals itself as a space of epistemic, critical, and ethical resistance. It is through theory that it becomes possible to name the dysfunctions, understand the mechanisms of procedural exclusion, and propose hermeneutical paths capable of rescuing the commitment of law to intersubjectivity, to listening, and to recognizing the other. The Judiciary, under the pretext of efficiency, has been operating an arbitrary and dehumanizing filtering of demands, seriously compromising access.

Rejane Guimarães Amarante said:

11/12/2025 at 12:12:49

I don't understand why my name came out as *undefined* signed Rejane Guimaraes Amarante

Rejane Guimarães Amarante said:

11/12/2025 at 12:11:02

Because legal experts like yourself, Dr. Lenio, uphold the *constitutionality* of Inquiry 4781 at the Supreme Federal Court. After that, all kinds of illegality and arbitrariness were *permitted* by your *hermeneutics*, doctor.

Tags: defensive jurisprudence 

https://www.conjur.com.br/2025-dez-11/jurisprudencia-defensiva-e-carta-branca-para-ilegalidades-sim/