DIREITO GV Law Review

Direito GV Law Review in numbers: 2020 balance sheet and prospects for 2021

Catarina Helena Cortada Barbieri — 2021-05-10

Law and Science: a difficult relationship

Marcio Cunha Filho — 2021-05-10

Review of: MCINTYRE, Lee. The Scientific Attitude: Defending Science from Denial, Fraud, and Pseudoscience. Cambridge: Massachusetts Institute of Technology Press, 2019.

A study on the possibility of appying artificial intelligence in judicial decisions

Erick Rincón Cárdenas — 2021-05-10

Artificial intelligence is a tool that is increasingly present in the development of daily activities carried out by human beings, and, to this extent, it is applied in different sectors such as the field of Law, mainly in relation to judicial decisions. This article aims to resolve different questions that exist in relation to the application of artificial intelligence to judicial decisions, analyzing whether it is useful, whether its implementation is feasible and what are the consequences when an expert legal system participates in legal decision-making.

As a result of this academic and theoretical research, it is determined that the participation of an expert legal system in judicial decision-making has the main implication of increasing legal certainty in the judicial system, as a consequence of an increase in trust in it. Such an increase in confidence, accompanied by the greater speed of the administration of justice, can justify the costs of its application. Despite the advantages, it cannot be ignored that the responsibility for these decisions will always fall on the human being, for the specific case, on the judge.

“Interiorization” as a universalizable social right

Fernando César Costa Xavier — 2021-05-10

The article argues that Brazilian law, in order to address the political and administrative challenges arising from the Venezuelan migration crisis in the State of Roraima, came to recognize “internalization” as a right of mobility, which would be implemented as an expansive measure of “emergency assistance to welcome people in situations of vulnerability due to migration flow caused by humanitarian crisis”, pursuant to article 5, X, of Law 13.684/2018. The applied method examines the set of relevant norms (and its underlying principles) and interprets it both systematically, seeking to overcome inconsistencies and incoherences, and literally, giving rigorous contours to the definitions used in the norms. From this, the developed thesis is that this right of internalization, as provided by that Law, could be vindicated by any subject (migrant/foreigner or national) and in any situation of humanitarian crisis (caused by international or internal migratory processes, or other situations of uncontrolled displacement). Increasing its incidence would not frustrate, but rather promote the ultimate purposes that mobilized the formulation of the policy of internalization, namely to alleviate the pressure of demographic increase on the public social security system and to enable the insertion of the surplus into the workplace population in other regions of the country. More than a migratory right, internalization would be a social right, and must therefore conform to the principles of universality and progressivity.

Eyes of justice: the contact between judges and custodians during pretrial detentions in São Paulo

Fabio Lopes Toledo — 2021-05-10

The article aims to contribute with analyzes concerning the contact provided by pretrial detentions among arrested citizens and criminal justice players, mainly judges, and to what extent this meeting impacts (or not) the production of the decision. The text is based on a research conducted during pretrial detentions in some cities in the state of São Paulo, which featured semi-structured interviews and field observation to build the empirical corpus studied. From the analysis of these contacts, categories were created to describe how these encounters take place. We have defined five types of contacts: eye-to-eye, eyes on the “person of right”, eyes on moral rules, eyes on the screen and eyes on the facts. In spite of the ambivalences portrayed, the pretrial detention represents an improvement by allowing the judge to notice who the arrested person is. However, it is still important that this look can really allow the person to be seen, otherwise, the pretrial detention is likely to become an automated pre-procedural phase of judicial production.

Happy birthday, Mr. Public Officer! About the justification of the criminalization of accepting and offering gifts in the public field

Bruno Rusca — 2021-05-10

The paper contends that it is legitimate to punish public officers for accepting gifts in the course of their functions, and individuals for offering them to them; that is to say, when the benefit is given for mere consideration of the office, but does not involve a commitment on the part of the functionary to perform a certain act in return -quid pro quo-. Specifically, it is argued that because of the expressive function played by gifts, insofar as they favor the emergence of close relations among agents, they have the capacity to interfere with public officers’ decisions and thus can affect the normal functioning of the government. Furthermore, based on certain tools developed by the Continental theory of crime, the paper proposes guidelines for determining in which cases the acceptance and the offer of gifts fall outside the scope of the criminal offence. Finally, it poses some criteria that may be useful in practice to distinguish the acceptance and the offer of gifts from bribes.

An empirical analysis of Brazilian Accountability Courts: capabilities and perfomance

Felipe Galvão Puccioni — 2021-05-10

The study seeks, through empirical analysis, to answer the following question: Do the institutional characteristics of the Courts of Accountability, as defined in Federal Constitution of 1988, influence their performance? The response was achieved through statistical regression using the least squares method, which analyzed the relationship between performance and the capabilities of these autonomous organs. The performance was measured by the variables: number of cases judged; number of on-site inspections (initiative); amount of fines and refunds imputed; and percentage of rejection of government accounts in relation to the total of judged judgments. And the capacities for the following: value of the annual budget, total staff, percentage of permanent employees, whether there are Substitute Ministers/Substitute Judges and Prosecutors (both provided by public selection), and Ministers/Judges coming of these careers. Data were collected directly from the Courts through the Information Access Law. The article also presents important criticisms to previous studies in search of a more complete approach of the subject. This article, in search of a more real approach to the Courts of Accountability, also presents important criticisms to previous studies. Despite the focus of discussions for the improvement of the Courts of Accountability in Brazil revolving around the nominations of Ministers and Judges, the study indicates that another factor, neglected in the debates, is directly associated with an increase in the productivity and independence of these Courts, that is, the percentage of public agents coming from public selections.

Religious intolerance in the state of Minas Gerais: considerations from a research based on police reports

Camila Silva Nicácio — 2021-05-10

This paper is located in between the disciplinary fields of law and the social sciences and investigates the institutional treatment of religious intolerance in Brazil, particularly in the state of Minas Gerais. This empirical research privileges the qualitative and quantitative analysis of primary data, taken from police reports registered between 2016 and 2018, and uses mainly the procedures of data collection and content analysis. The work restores the main results of a postdoctoral research that aimed initially to identify how the demands based on religious intolerance from the social code to the specialized code of law are translated. An additional objective in the investigation process was to analyze the possibility of the emergence of religious intolerance as a public problem, under the terms developed by Daniel Cefaï, taking into account the treatment given to it by the institutions, especially the Civil Police. The results point to difficulties in this translation, which may prevent the emergence of religious intolerance as a public problem, as well as the opportunity to reflect on other social technologies, non-legal, to address the issue of intolerance.

Quantitative determinants of judicial performance: factors associated with the productivity of the courts

Renato Máximo Sátiro — 2021-05-10

Much has been discussed about the factors that would lead to an efficient or inefficient performance of the Brazilian Judiciary system, and part of the academic discussions regarding the field of administration of justice concerns the performance/ productivity antecedents related to courts and magistrates. In this sense, the main objective of the present work was to identify the determinant aspects of the productivity of the state Courts of Brazil and to test emerging variables that may help in this understanding. From an analysis of the reference literature, the variables already consolidated were defined: workload of the magistrate, amount of human resources (permanent servants and outsourced staff); and the emerging variables: lawyers and conciliators. The inference technique used was the Multiple Regression with panel data. After testing and validating the Regression model and assumptions, the hypothesis that the number of lawyers, the workload and the number of permanent servants and outsourced staff affect the productivity of the courts was confirmed. Finally, the results point in the opposite direction of the National Council of Justice (CNJ) guidelines; it was concluded that the number of conciliators is not related to the productivity of the courts.

Online dispute resolution methods: state-of-the-art of its application and challenges

Carolina Stange Azevedo Moulin — 2021-05-10

Online dispute resolution methods (ODR) are an umbrella category that encompasses the application of technology to legal practice at different levels of complexity and automation. This article aims to provide an overview of scientific literature on the concept and modalities of ODR, its main practical applications and the challenges for its regulation. The method employed was literature review. Drawing on extensive review of national and international literature on the topic, it concludes that the two central modalities of ODR software are principal and instrument systems, the latter being subdivided into expert and support systems. ODR technologies foster scale savings in conflict resolution and add functionalities that elevate the quality of decision-making. The utility of ODR mechanisms goes beyond the scope of virtual consumerist relationships, their original domain of application, and expands into family, inheritance, administrative and intellectual property disputes. There is a movement of transnational regulation of ODR mechanisms by private entities, the European Union and the United Nations. The standardization of online dispute resolution methods by states is critical to ensuring that access to justice; procedural justice and material justice are met in ODR.

On dignity, vulnerability, indigenous peoples and fisherfolks: Chilean subsistence fishing according to international human rights.

Eduardo Roig Monge — 2021-06-04

Subsistence fishing is a confusing and heterogeneous fishery construct. Even so, its connection to human protection compels us to analyze it through the lens of human rights. Using the case of Chile due to its legal peculiarities, we aim to determine the scope of the Chilean legislation on subsistence fishing, integrating international treaties on human rights, case law, and reports from United Nations agencies regarding three issues. First, we examine how the Chilean legislation relates to the right to food and the promotion of decent social conditions. Next, we explain why the prohibition of riggings and propulsion enables us to identify economically precarious users and how this prohibition is related to vulnerabilities and poverty as human rights concepts. Finally, we show how the property of indigenous peoples and the culture of fisherfolk populations could impose their inclusion and preferences in access to subsistence fishing resources. Considering the results, we hold that human rights help to clarify the understanding of it and propose partial amendments to the Chilean legislation on subsistence fishing. But, above all, they introduce protection standards that allow us to see such legislation not as a mere derivation of state privilege, but as an attempt to foster a situation of equality: an affirmative action. We conclude by presenting a conceptual approach for Chilean subsistence fishing, suggesting that it could help to unveil new objectives and rights in fishing, and even influence the understanding of natural resource allocation.

Numbers of Arbitration Proceedings in the Chambers of Santa Catarina

Aline Beltrame de Moura — 2021-06-11

This article aims to investigate the current scenario of arbitration in the state of Santa Catarina regarding arbitral proceedings conducted in local arbitral institutions in order to quantify the use of arbitration in such state. In this sense, through search forms sent to local arbitral institutions, it was possible to quantify the arbitral proceedings, the industries and sectors involved, the performance of lawyers in arbitration proceedings, among other aspects. After analyzing the data and applying the deductive reasoning to the results obtained, it was possible to conclude that despite the high volume of arbitration proceedings, in reality, the outcomes of these proceedings are, in its majority, settlement agreements between the parties, therefore being more similar to mediation and conciliation.

Asymmetries in the Informational Content of the Precedents of the Brazilian Courts of Account and Its Impacts on the Principle of Isonomy

Ana Karina Koda Ogata — 2021-06-11

The Brazilian Courts of Accounts have gained considerable notoriety in recent years. Although the Law’s application by anybody is open to the various interpretative possibilities of the law, the analysis of these courts’ summaries shows a significant asymmetry in the normative interpretation by such bodies, which can generate different treatment in similar cases. In this context, this article sought to identify asymmetries in the contents of the precedents of the Brazilian Courts of Accounts to verify whether there is equality in inspecting public sector managers and organizations in the national territory. The research was carried out using a qualitative methodology, using the content analysis method and the Iramuteq software’s support. As a result, a mapping of the precedents of the Brazilian Courts of Accounts is presented from seven classes (remuneration, retirement, pension, irregularities, account process, budget, and bidding). Such data can be useful for strategic planning in Public Administration, seeking to ensure more legal security for public managers. The conclusions indicated no equality in the audit of public sector managers and organizations in the national territory, mainly due to the lack of a Superior Court of Accounts to harmonize this jurisprudence in the federation.

Nudge and Information: Decision Making and “Average Man”

Ludmila Junqueira Duarte Oliveira — 2021-06-11

In this paper the authors seek to analyze if the new contributions about human decision making had any impact on the Brazilian Civil Code and Consumer Protection Law. Comparing the two statutes, the authors will also verify which is the best mechanism (void, nudges, disclosure) to use a better understanding of human decision making to improve the decisions with repercussions on private law. The paper is insert in the field of Law & Society and was developed through the critical analysis of the most important Brazilian statutes on private law. As a conclusion, the authors suggest that the mechanisms that lead to the annulment of contracts is insufficient to incorporate the new findings on human decision making into private law and therefore must be conjugated with other mechanisms, such as nudges and disclosure.

Impeachment: History and a Case of Institutional Evolution

Arthur Augusto Rotta — 2021-06-14

This paper aims to analyze the institutional evolution of impeachment, from its emergence in England to the occurrence of the American and French matrices, which would later be repeated, with variations, in current presidential and semipresidential democracies. The recent mutation in this instrument function, as we argue here, turned it into a political weapon at disposal of parliamentary oppositions against governments, by one hand, and by the other hand, converted it in a quite peculiar motion of distrust to oust presidents. Nonetheless, this mutation must be understood as another historical change that characterizes a long trajectory of evolutionary adaptations to fit the constant political environment modifications. We conclude by emphasizing the necessity of analyzing the impeachment institutional evolution history in order to understand accurately the reasons for the development of these new functions in currently context of presidential democracies crisis.

The Quality of the Patent Privileges Granted in Brazil under the Perspective of Patent Nullity Lawsuits

Sílvio Sobral Garcez Júnior — 2021-06-30

For patents to be used as a driving force for innovation, competitiveness and technological progress, the system must operate efficiently and with quality. There are studies that found that the Brazilian National Institute of Industrial Property (INPI) has not complied with the constitutional mandate of efficiency, given the chronic delay in the analysis of patent applications, which far exceeds the reasonableness. The present article proposes to move in a different and still little explored direction. The purpose of this paper is to study the rigor of the Brazilian patent system regarding the analysis of patent applications to verify if there is a quality crisis in it. If so, this finding would reinforce the need for revision the system so that its mediate purpose (promotion of the economic, social and technological development of the country) can be achieved. The literature points out that one way of assessing the quality of a patent system is to determine the rate at which technical decisions made by the patent office are challenged in the legal sphere. In Brazil, every patent invalidity action must be noted in the INPI magazine. Based on this information, it was possible to conduct an unprecedented empirical investigation on the quality of patent privileges granted in the country. From the perspective of this work, the quality of the patent was analyzed from the point of view of legal compliance with the patentability criteria. This is a descriptive and explanatory research, with qualitative and quantitative character, which used the empirical and inductive method.

Controversies around the Sanction of Legislative Initiatives for the Management of Packaging Waste in Developing Countries: Reflections from the Argentine Case (2003-2019)

Pablo Javier Schamber — 2021-07-19

For at least two decades, draft laws on recyclable waste and packaging management have been discussed in Argentina. This article analyzes the points of agreement and the controversies between the sectors in conflict regarding the orientations of these debates in three different areas: Autonomous City of Buenos Aires, Province of Buenos Aires and Nation. Secondary sources were consulted (legislative files, reports, public documents and bibliography) and a series of key actors (specialists on the subject, legislative advisers, referents of cooperatives, legislators, officials and technicians) were interviewed.

Between Abandonment and Tax Obligations: A Gap on the Social Function of Property

Filipe Augusto Portes — 2021-08-23

In Brazil, the urban space is marked by inequality, diverging from the constitutional values that envision social justice. Different challenges, such as population aging (demographic phenomenon underway in the national context), reinforce the responsibility of the public power to carry out the social functions of the city. In view of this, the article aims to analyze the fiscal situation of 62 properties identified as idle in the historic and central region of the municipality of Araraquara (SP), verifying the possible presence of active debt in each of these. Such interest starts from the relationship between abandonment and compliance with tax obligations, brought by the legislation. This is a study with a quantitative and qualitative approach, based on legislative and documentary analysis, which consists of a section of a larger research, which has regular assistance from Fapesp (Process n. 2017/15781-9). The results show that only 10% of the properties identified as idle have tax burdens. Such an outcome demonstrates that the respective owners, despite not attributing the proper use to their assets, have the desire to maintain them, ensuring the discharge of their tax duties. This scenario seems to malnourish the primary intention of the social function of property, which is related to the promotion of the right to the city, through the democratization of access to urban land.

Epistemological and empirical challenges of Niklas Luhmann’s systems theory: an interview with professors Álvaro Pires and Lukas Sosoe

Álvaro Pires — 2021-05-10