O instituto da deferência e as práticas regulatórias dos Tribunais brasileiros: uma análise empírica do Tribunal de Justiça do Estado de São Paulo e dos Tribunais de sobreposição

Abstract

This study analyzes how the Brazilian Judiciary responds to administrative decisions made by regulatory agencies, with an emphasis on the application of the doctrine of judicial deference. Based on a theoretical and historical framework concerning the role of agencies within the regulatory state, the research focuses on an empirical analysis of decisions issued by the São Paulo State Court of Justice (TJSP), the Superior Court of Justice (STJ), and the Federal Supreme Court (STF) between 2021 and 2025. The study aimed to assess whether and how judicial deference manifests in the outcome (maintenance or annulment of administrative acts), in the reasoning adopted by the courts, and in the scope of judicial review. The data reveals that judicial deference is neither homogeneous nor predictable: some decisions uphold agency acts without invoking deference, while others adopt deferential rhetoric but invalidate the regulatory actions. The analysis shows that the TJSP tends to adopt a more deferential stance, with a predominantly formal review; the STJ more frequently revises administrative acts, particularly those of ANS; and the STF, despite a limited sample, predominantly conducts substantive review—even when acknowledging the agencies’ technical expertise. The study concludes that judicial deference in Brazil is multifaceted, varying according to the court, the agency involved, and the regulated sector, which poses challenges to legal certainty and predictability in judicial oversight of technical regulation