Ensaios sobre o poder judiciário no Brasil

A tese apresenta três ensaios empíricos sobre os padrões decisórios de magistrados no Brasil, elaborados à partir de bases de dados inéditas e de larga escala, que contém detalhes de dezenas de milhares de processos judiciais na primeira e na segunda instância. As bases de dados são coletadas pelo próprio autor através de programas-robô de coleta em massa de informações, aplicados aos "links" de acompanhamento processual de tribunais estaduais no Brasil (Paraná, Minas Gerais e Santa Catarina). O primeiro artigo avalia - com base em modelo estatístico - a importância de fatores extra-legais sobre os resultados de ações judiciais, na Justiça Estadual do Paraná. Isto é, se os juízes favorecem sistematicamente a parte hipossuficiente (beneficiária de Assistência Judiciária Gratuita). No segundo artigo, estuda-se a relação entre a duração de ações cíveis no primeiro grau e a probabilidade de reforma da sentença, utilizando-se dados da Justiça Estadual de Minas Gerais. O objetivo é avaliar se existe um dilema entre a duração e a qualidade das sentenças. Dito de outra forma, se existe um dilema entre a observância do direito ao devido processo legal e a celeridade processual. O último artigo teste a hipótese - no âmbito de apelações criminais e incidentes recursais no Tribunal de Justiça de Santa Catarina - de que as origens profissionais dos desembargadores influenciam seus padrões decisórios. Isto é, testa-se a hipótese de que desembargadores/relatores oriundos da carreira da advocacia são mais "garantistas" ( e desembargadores oriundos da carreira do Ministério Público são menos "garantistas") relativamente aos seus pares oriundos da carreira da magistratura. Testam-se as hipóteses com base em um modelo estatístico que explica a probabilidade de uma decisão recursal favorável ao réu, em função da origem de carreira do relator do recurso, além de um conjunto de características do processo e do órgão julgador.

Show me the money and I will bring you the head: evaluation of the effects of self-interest and anger on whistleblowing

Though many of those who decided to report wrongdoings in their organizations were able to tell their stories (e.g. Bamford, 2014, Armenakis 2004), it is fair to say that there is still much left to uncover. The paper aims to contribute to the literature in three ways. First, it provides preliminary evidence that the wrongdoing linked with individual financial loss leads to higher whistleblowing rate. Secondly, it shows how the experience of anger is related to the higher likelihood to report the wrongdoer but only if the wrongful act is perceived as a cause of one’s financial loss. Finally, the paper establishes first steps for the future development of an experimental procedure that would enable to predict, and measure whistleblowing behavior in the lab environment.

Relações de poder em uma acusação de magia no século II d.C: uma análise do discurso Apologia de Apuleio

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES)

Criador e criatura: os Estados Unidos e a Organização Mundial do Comércio (OMC)

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES)

Manuais de conduta em mídias sociais e sua contribuição para a democracia digital: um estudo de manuais brasileiros

Information and communication technology have contributed to the realization of the ideals of citizen participation in public decisions, as well as to help in fighting corruption and wrongdoing in government. After all, democracy entails the right to information. The government, in many spheres, has encouraged the responsible use of the internet. Conduct manuals and standards have been published for public segments to direct the responsible use of these tools by their agents. This article aims to determine whether the manuals comply with the principles of digital democracy. Conduct manuals were analyzed in digital media from four Brazilian public organizations: Embrapa; Department of Communication of the Federal Government; Judiciary and Health Department of the Federal District. As a methodology, content analysis, based on criteria focused on transparency and encouraging civic engagement was used.

Os Estados Unidos e o Órgão de Solução de Controvérsias (OSC) da OMC: Um estudo da participação dos EUA na criação e no uso do mecanismo

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES)

The Ethics of Implementation: Institutional Remedies and the Lawyer's Role

The issue addressed in this article is whether and to what extent a lawyer has an ethical responsibility to pursue implementation of the remedy in institutional reform litigation. Institutional reform litigation refers to cases in which an individual or class of individuals sues a large organization in order to vindicate constitutional or statutory rights. The types of cases with which this article is concerned are the "public law" type, such as school desegregation, prisoners' rights and patients' rights cases, although included under the rubric of institutional reform can be, inter alia, antitrust, reapportionment and bankruptcy cases. The implementation stage of institutional reform litigation arises after an individual or class of individuals prevails at the liability stage, or pursuant to a settlement, and a court orders the defendant organization to change in order to vindicate the plaintiffs' rights. At that point, the defendant organization, whether it be a prison, mental hospital or school district, usually has the burden of implementing the order. One conclusion drawn is that the ethical duty of the lawyer must always be consistent with the lawyer's "special responsibility for the quality of justice."

Chief Audit Executives’ Evaluations of Whistle-Blowing Allegations

This study examines the effects of the source of whistle-blowing allegations and potential for allegations to trigger concerns about reputation threats on Chief Audit Executives’ handling of whistle-blowing allegations. The participants for this study, 79 Chief Audit Executives (CAEs) and deputy CAEs, evaluated whistle-blowing reports related to financial reporting malfeasance that were received from either an anonymous or a non-anonymous source. The whistle-blowing reports alleged that the wrongdoing resulted from either the exploitation of substantial weaknesses in internal controls (suggesting higher responsibility of the CAE and internal audit) or the circumvention of internal controls (suggesting lower responsibility of the CAE or internal audit). Findings indicate that CAEs believe anonymous whistle-blowing reports to be significantly less credible than non-anonymous reports. Although CAEs assessed lower credibility ratings for the reports alleging wrongdoing by the exploitation of substantial weaknesses in internal controls, they allocated more resources to investigating these allegations.

Must We Forgive?: Exploring the Limits and Possibilities of Forgiveness and Resentment

Conflict has marked civilization from Biblical times to the present day. Each of us, with our different and competing interests, and our desires to pursue those interests, have over time wronged another person. Not surprisingly then, forgiveness is a concern of individuals and groups¿communities, countries, religious groups, races¿yet it is a complex idea that philosophers, theologians, political scientists, and psychologists have grappled with. Some have argued that forgiveness is a therapeutic means for overcoming guilt, pain, and anger. Forgiveness is often portrayed as a coping mechanism¿how often we hear the phrase, ¿forgive and forget,¿ as an arrangement to help two parties surmount the complications of disagreement. But forgiveness is not simply a modus vivendi; the ability to forgive and conversely to ask for forgiveness, is counted as an admirable trait and virtue. This essay will explore the nature of forgiveness, which in Christian dogma is often posited as an unqualified virtue. The secular world has appropriated the Christian notion of forgiveness as such a virtue¿but are there instances wherein offering forgiveness is morally inappropriate or dangerous? I will consider the situations in which forgiveness, understood in this essay as the overcoming of resentment, may not be a virtue¿when perhaps maintaining resentment is as virtuous, if not more virtuous, than forgiving. I will explain the various ethical frameworks involved in understanding forgiveness as a virtue, and the relationship between them. I will argue that within Divine Command Theory forgiveness is a virtue¿and thus morally right¿because God commands it. This ethical system has established forgiveness as unconditional, an idea which has been adopted into popular culture. With virtue ethics in mind, which holds virtues to be those traits which benefit the person who possesses them, contributing to the good life, I will argue unqualified forgiveness is not always a virtue, as it will not always benefit the victim. Because there is no way to avoid wrongdoing, humans are confronted with the question of forgiveness with every indiscretion. Its limits, its possibilities, its relationship to one¿s character¿forgiveness is a concern of all people at some time if for no other reason than the plain fact that the past cannot be undone. I will be evaluating the idea of forgiveness as a virtue, in contrast to its counterpart, resentment. How can forgiveness be a response to evil, a way to renounce resentment, and a means of creating a positive self-narrative? And what happens when a sense of moral responsibility is impossible to reconcile with the Christian (and now, secularized imperative of) forgiveness? Is it ever not virtuous to forgive? In an attempt to answer that question I will argue that there are indeed times when forgiveness is not a virtue, specifically: when forgiveness compromises one¿s own self-respect; when it is not compatible with respect for the moral community; and when the offender is unapologetic. The kind of offense I have in mind is a dehumanizing one, one that intends to diminish another person¿s worth or humanity. These are moral injuries, to which I will argue resentment is a better response than forgiveness when the three qualifications cannot be met.

Domain Name Transfer before Slovak and Czech Courts

In Europe, a disagreement persists in the courts about the possibility of plaintiffs to request a domain name transfer in domain name disputes. In the last ten years, Slovak and Czech courts also produced some jurisprudence on this issue. Interestingly, the BGH’s influential opinion in the shell.de decision, which denied domain name transfer as an available remedy under German law back in 2002, wasn’t initially followed. To the contrary, several Slovak and Czech decisions of lower courts allowed a domain name transfer using two different legal bases. This seemingly settled case law was rejected a few months ago by the globtour.cz decision of the Czech Supreme Court, which refused domain name transfers for the time being

The Social versus Private Incentive to Sue

The private value of lawsuits is based on plaintiffs' expected recovery at trial compared to their filing costs, whereas the social value consists of the incentives suits create for injurers to invest in accident avoidance. Generally, there is no relationship between these two values: there may be either too many or too few suits from a social perspective. Thus, there is scope for corrective measures, although there is no simple policy. Extending the model to consider a negligence rule rather than strict liability, and to allow for pretrial settlements, leads to some modified conclusions but does not alter the basic insights.

The Future Direction of Delaware Law (Including a Brief Exegesis on Fee Shifting Bylaws)

Delaware sets the governance standards for most public companies. The ability to attract corporations could not be explained solely by the existence of a favorable statutory regime. Delaware was not invariably the first or the only state to implement management friendly provisions. Given the interpretive gaps in the statute and the critical importance of the common law in the governance process, courts played an outsized role in setting legal standards. The management friendly nature of the Delaware courts contributed significantly to the state’s attraction to public corporations. A current example of a management friendly trend in the case law had seen the recent decisions setting out the board’s authority to adopt bylaws under Section 109 of the Delaware General Corporation Law (DGCL), particularly those involving the shifting of fees in litigation against the corporation or its directors. The DGCL allows bylaws that address “the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers or employees.” The broad parameters are, however, subject to limits. Bylaws cannot be inconsistent with the certificate of incorporation or “the law.” Law includes the common law. The Delaware courts have used the limitations imposed by “the law” to severely restrict the reach of shareholder inspired bylaws. The courts have not used the same principles to impose similar restraints on bylaws adopted by the board of directors. This can be seen with respect to bylaws that restrict or even eliminate the right of shareholders to bring actions against management and the corporation. In ATP Tour, Inc. v. Deutscher Tennis Bund the court approved a fee shifting bylaw that had littl relationship to the internal affairs of the corporation. The decision upheld the bylaw as facially valid.The decision ignored a number of obvious legal infirmities. Among other things, the decision did not adequately address the requirement in Section 109(b) that bylaws be consistent with “the law.” The decision obliquely acknowledged that the provisions would “by their nature, deter litigation” but otherwise made no effort to assess the impact of this deterrence on shareholders causes of action. The provision in fact had the practical effect of restricting, if not eliminating, litigation rights granted by the DGCL and the common law. Perhaps most significantly, however, the bylaws significantly limited common law rights of shareholders to bring actions against the corporation and the board. Given the high dismissal rates for these actions, fee shifting bylaws imposed a meaningful risk of liability on plaintiffs. Moreover, because judgments in derivative suits were paid to the corporation, shareholders serving as plaintiffs confronted the risk of liability without any offsetting direct benefit. By preventing suits in this area, the bylaw effectively insulated the behavior of boards from legal challenge. The ATP decision was poorly reasoned and overstepped acceptable boundaries. The management friendly decision threatened the preeminent role of Delaware in the development of corporate law. The decision raised the specter of federal intervention and the potential for meaningful competition from the states. Because the opinion examined the bylaw in the context of non-stock companies, the reasoning may remain applicable only to those entities and never make the leap to for-profit stock corporations. Nonetheless, the analysis reflects a management friendly approach that does not adequately take into account the impact of the provision on the rights of shareholders.

The Battle of the Bulge: The Surprising Last Stand Against State Marijuana Legalization

Although marijuana possession remains a federal crime, twenty-three states now allow use of marijuana for medical purposes and four states have adopted tax-and-regulate policies permitting use and possession by those twenty-one and over. In this article, I examine recent developments regarding marijuana regulation. I show that the Obama administration, after initially sending mixed signals, has taken several steps indicating an increasingly accepting position toward marijuana law reform in states; however the current situation regarding the dual legal status of marijuana is at best an unstable equilibrium. I also focus on what might be deemed the last stand of marijuana-legalization opponents, in the form of lawsuits filed by several states, sheriffs, and private plaintiffs challenging marijuana reform in Colorado (and by extension elsewhere). This analysis offers insights for federalism scholars regarding the speed with which marijuana law reform has occurred, the positions taken by various state and federal actors, and possible collaborative federalism solutions to the current state-federal standoff.

Opinions in cases of debt, 1748-1749

Opinions rendered in cases brought against Thomas Barker, executor of the estate of Robert Forstor, by James and Roger Barlow (executors of the estate of Thomas Forster), Sibylla Price, and Richard Foster. The attorney for all plaintiffs was Samuel Swann.

Notebook of cases in the New York Supreme Court and Circuit Court, 1797-ca. 1802

Contains "court minutes" of the New York Supreme Court and Circuit Court, in short entries by an unknown judge, identifying cases, attorneys, plaintiffs and defendants, and the actions taken.