Direitos sociais e proporcionalidade: análise da doutrina e da jurisprudência do Supremo Tribunal Federal

A presente pesquisa tem por objetivo analisar o uso do método da proporcionalidade para decidir questões acerca de direitos sociais. Nesse sentido, antes relacionada somente à proibição do excesso (Übermaßverbot), a proporcionalidade passa a ter reconhecida sua outra face, denominada proibição da proteção insuficiente ou deficiente (Untermaßverbot). O legislador e o administrador passam a ter suas ações balizadas pela proibição do excesso de intervenção e pela imposição da intervenção para proteção de direitos. O termo pouco usual se refere ao controle judicial das omissões do legislador e administrador, na medida em que orienta a atividade deles quando da conformação e implementação dos direitos sociais. Os escassos estudos na doutrina não permitiram o desenvolvimento do método em relação aos direitos sociais no Brasil, em que pese a jurisprudência do Supremo Tribunal Federal se utilizar da proporcionalidade como proibição da proteção insuficiente ou deficiente em alguns de seus julgados, especialmente em época recente. Mas se a utilização de tal método na argumentação judicial passa a ser vista de forma recorrente, o Tribunal deve primeiro ter clareza de seus elementos quando pretende invocá-lo em suas decisões e até mesmo firmeza da utilidade de seu uso quanto a esses direitos. Ainda, tem-se que o transplante de métodos de revisão judicial dos direitos de defesa para os direitos sociais merece estudo específico, tanto em relação à concepção desses direitos quanto à possível aplicabilidade da proporcionalidade, pois as diferenças entre eles apontam que nem sempre ambos os direitos comportarão argumentações idênticas para os problemas que enfrentam.

Heaven and hell, also the world of spirits or intermediate state, from things heard and seen,

Mode of access: Internet.

Nation-state or country-state : how do we discuss belonging in an age of fluidity?

This is the opening article of a two-part exchange between Jean-Paul Gagnon and Michael Gardiner on the nation-state.

Something rotten in the state of Minnesota: or the morality of backwoodsmen: 'A Simple Plan'

'A Simple Plan' is a deceptively complex and multilayered film, combining elements of Celtic mythology with the morality play and the windfall fantasy gone disastrously wrong. Despite its blending of realism and heavyhanded symbolism, and its abundant trans-textual gestures, 'A Simple Plan' is in many ways defiantly not a 90s movie: its leading characters are fashionably flawed, but they are neither sensitive, nor honourable, nor heroic; there are no startling special effects or intricate timeshifts; and it desperately gives the impression of depth, of being emphatically more than mere superficial excess. At a stretch it almost appears to be a throwback to the 1930s Production Code emphasis on the role of cinema in moral instruction; while good hardly triumphs over evil, venality is painfully and emphatically punished. But in other ways it is a quintessential late 90s film: an American/British/Japanese/German/French co-production, 'A Simple Plan' acts most palpably as a commentary on the moral, economic and social condition of the United States at the end of the American century.

Closing the gap between copyright and designs : an age of enlightnement or state of confusion?

The arena of intellectual property encompasses streams that often interrelate and overlap in protecting different aspects of intellectual property. Australian commentators suggest that ‘one of the most troublesome areas in the entire field of intellectual property has been the relationship between copyright protection for artistic works under the Copyright Act 1968 (Cth) and protection for registered designs under the Designs Act 1906 (Cth).’ [McKeough, J., Stewart, A., & Griffith, P. (2004). Intellectual property in Australia (3rd ed.). Chatswood, NSW: Butterworths.] [Ricketson, S., Richardson, M., & Davison, M. (2009). Intellectual property: Cases, materials and commentary (4th ed.). Chatswood, NSW: LexisNexis Butterworths.] This overlap has caused much confusion for both creators of artistic works and industrial designs, as there is an uncertainty of whether protection against infringement is afforded under the Copyright Act 1988 (Cth) or whether the Designs Act 2003 (Cth) will apply. In Australia, there is limited precedent that examines the crossover between copyright and designs. Essentially, the cases that have tested this issue remain unclear as to whether a design applied industrially will invoke copyright protection. The cases demonstrate that there is an inconsistency in this area despite the aims of the new provisions of the Designs Act 2003 (Cth) to close the loopholes between copyright and designs. This paper will discuss and evaluate the relationship between copyright protection for artistic works and protection for registered designs with respect to the Designs Act 2003 (Cth).

The power of fish trader associations in the marketing of fish in Lagos State

This paper focusses on the activities of trade associations in the marketing of fish in Lagos State. The study covers 6 different markets in Lagos State of Nigeria. Analysis indicates that 86% of the traders are members of the associations. The ages of the traders range from 21 to over 55 years. However, majority are between the ages of 31 and 45 years. Traders secure their initial capital mostly from trade associations and Esusu/Ajo. Most traders have no working capital to maintain a regular series of outlets, so wholesalers turn to associations for funds, while retailers turn to wholesalers. They eventually pay back when they sell to consumers. The fish industry is found to be imperfectly competitive mostly because of the actions of fish trader associations. The fish marketing system is highly personalised and loyality exists between wholesalers and retailers and their customers

Influence of a fed or fasted state on the s-IgA response to prolonged cycling in active men and women

This study investigated the effect of a fed or fasted state on the salivary immunoglobulin A (s-IgA) response to prolonged cycling. Using a randomized, crossover design, 16 active adults (8 men and 8 women) performed 2 hr of cycling on a stationary ergometer at 65% of maximal oxygen uptake on 1 occasion after an overnight fast (FAST) and on another occasion 2 hr after consuming a 2.2-MJ high-carbohydrate meal (FED). Timed, unstimulated whole saliva samples were collected immediately before ingestion of the meal, immediately preexercise, 5 min before cessation of exercise, immediately postexercise, and 1 hr postexercise. The samples were analyzed for s-IgA concentration, osmolality, and cortisol, and saliva flow rates were determined to calculate s-IgA secretion rate. Saliva flow rate decreased by 50% during exercise (p < .05), and s-IgA concentration increased by 42% (p < .05), but s-IgA secretion rate remained unchanged. There was a 37% reduction in s-IgA:osmolality postexercise (p < .05), and salivary cortisol increased by 68% (p < .05). There was no effect of FED vs. FAST on these salivary responses. The s-IgA concentration, secretion rate, and osmolality were found to be significantly lower in women than in men throughout the exercise protocol (p < .05); however, there was no difference between genders in saliva flow rate, s-IgA:osmolality ratio, or cortisol. These data demonstrate that a fed or fasted state 2 hr before exercise does not influence resting s-IgA or the response to prolonged cycling. Furthermore, these results show lower levels of s-IgA and osmolality in women than in men at rest.

Derivative actions as a mechanism for the protection of minority shareholders in China: a result of convergence or divergence

The protection of minority shareholders has become one of the key features of company law reform in many countries in recent years. Various mechanisms have been created to achieve this objective. Australia has introduced the statutory derivative action procedure mainly based on models drawn from Canada and New Zealand; this provision was inserted into the Corporations Act in March 2000. China has also adopted a similar mechanism – known as the shareholder representative action; this scheme was based upon China’s understanding of statutory derivative actions in Western countries. China’s derivative action mechanism is reflected in amendments to the 2005 PRC Company Law and 2005 Securities Law that both were passed on 27 October 2005 and came into effective on 1 January 2006. The development of statutory derivative actions in different countries demonstrates the interaction between forces of convergence and divergence in company law reforms. This article reviews different mechanisms adopted in the Chinese law for the protection of minority shareholders. It especially focuses on an analysis of the nature of the shareholder representative action and the procedures for its utilisation in China – the equivalent to Western countries’ derivative actions. In comparison with statutory derivative actions in Australia, this article argues that the concept of the shareholder representative action in China rests upon a misunderstanding of Western derivative actions; this has involved a compromise between the dire need to protect shareholders and the ambiguities of a weak court system. As a consequence, China’s reforms in this area are largely a tentative gesture and are therefore unlikely to be very effective.

A steady-state model for heat pipes of circular or rectangular cross-sections

The objective of this paper is to present a generalized analytical-numerical model of the internal flow in heat pipes. The model formulation is based on two-dimensional formulation of the energy and momentum equations in the vapour and liquid regions and also in the metallic tube. The numerical solution of the model is obtained by using the descretization scheme LOAD and the SIMPLE numerical code. The flow fields, as well as the pressure fields, for different geometries were obtained and discussed. Copyright © 1996 Elsevier Science Ltd.

Genetic conservation of Brazilian fishes - Present state and perspectives

Natural environments have been worldwide affected by the growing impact of anthropogenic actions that promote the reduction or the extinction of several vertebrate species. Aquatic ecosystems represent one of the most affected environments and many fish species and/or populations have been increasingly fragmented distributed due to habitat degradation, predatory fishing, introduction of exotic species, river sedimentation, deforestation, pollution, reduction of food resource, and construction of hydroelectric dams. Actually, more than 150 Brazilian fish species, including freshwater, estuary and coastal species, can be considered threatened. Information on the diversity, conservation biology and population analysis on threatened species or populations, with several DNA markers, can be extremely useful for the success of fish species-recovery and maintenance programs. Although DNA analysis in Neotropical fish species are just beginning, they tend to increase with the widespread attention to the use of molecular approaches to minimize problems related to the risk of extinction. The accumulation of information on biology and pattern of genetic variation of fish species, associated with ecological and demographic data, and also education and respect to the nature, constitutes a crucial task to develop efficient conservation strategies in order to preserve the genetic diversity in aquatic environments.