A democratização da jurisdição constitucional: instrumentos de participação social

Este trabalho se propõe a estudar a jurisdição constitucional sob a perspectiva pós-positivista com destaque para o controle de constitucionalidade concentrado. O pós-positivimo quebrou os paradigmas do direito constitucional clássico dando ao Poder Judiciário uma grande ascensão política realçando a dificuldade contramajoritária do controle de constitucionalidade concentrado. Ademais, as diversas manifestações da jurisdição constitucional que alijam o cidadão comum da Corte fazem do Supremo Tribunal Federal um tribunal isolado. As novas facetas do Poder Judiciário, especialmente do STF, têm gerado um déficit democrático na jurisdição constitucional. Este déficit democrático gera desequilíbrio entre as duas dimensões do Estado Democrático de Direito, onde a democracia se encontra em desvantagem em relação ao ideal constitucionalista. Na tentativa de diminuir o déficit democrático da jurisdição constitucional este trabalho se assenta sobre a importância de se reforçarem os instrumentos de participação social no controle de constitucionalidade concentrado: amicus curiae, audiências públicas e visitas in loco. Além de reequilibrar o Estado de Direito, o reforço desses instrumentos traz a racionalização das decisões em sede de controle concentrado, uma vez que promove uma troca de experiência entre o julgador e a realidade possibilitando a ele proferir decisões mais eficientes.

Uma análise crítica do papel da jurisprudência no planejamento tributário: tensões principiológicas e desafios à uniformidade

Como em países de tradição civil law, o sistema jurídico brasileiro consagra a lei como fonte primária e garantia do Estado de Direito. A hermenêutica, como teoria científica da arte de interpretar, impõe-se em nosso sistema como canal destinado a suprir as vaguezas e imprecisões da lei e resolver-lhe os conflitos normativos, pelos métodos e critérios tradicionais. A jurisprudência, entendida como um conjunto uniforme e constante de decisões sobre assuntos similares, tem um papel secundário, e as ideias de Direito e Justiça, nesse contexto, muito se aproximam da lei. Com a promulgação da Constituição democrática de 1988, e o renascimento do direito constitucional brasileiro, cujo marco filosófico é o pós-positivismo, o constituinte atribuiu normatividade aos princípios constitucionais. Mas não sistematizou as relações dos princípios entre si, e destes com regras igualmente positivadas na Constituição, fazendo emergir certas tensões principiológicas e também entre princípios e regras constitucionais. Superado o modelo positivista, que equiparava o Direito à lei, ganharam grande importância as discussões relacionadas à neutralidade do aplicador da norma, e os voluntarismos e personalismos praticados sob ideais subjetivos de justiça. Nesse novo contexto, a jurisprudência assume papel protagonista, e aproxima o modelo brasileiro das jurisdições do common law. Entretanto, a vinculação apenas extraordinária dos julgadores aos precedentes, que deita raízes no regime de livre convencimento, induz falta de uniformidade e de coerência dos julgados, acerca de questões jurídicas similares, comprometendo a estabilidade, gerando incerteza e insegurança jurídica, e por via de consequência, relevantes empecilhos ao planejamento empresarial e aos investimentos que dele dependem, o que tende a gerar prejuízos ao ambiente de negócios do País. Essa perspectiva tem o objetivo de demonstrar que o Direito, enquanto sistema harmônico de normas, requer limites claros, e que esses limites, em nosso sistema constitucional, significam precisamente a imposição de métodos que assegurem à sociedade pronunciamentos uniformes e coerentes por parte do aplicador da norma, mediante observância de precedentes adequadamente sopesados em direção à harmonia, segurança jurídica e previsibilidade.

Parâmetros de concretização judicial do direito fundamental à saúde no fornecimento de medicamentos

In Brazil, social rights have always been considered secondary legal categories, whose implementation could wait for the pending of political decisions. At the end of the Second World War, International Law emphasizes the protection of human beings, raising his dignity as a legal pillar of the legal orders and one of the main foundations of Constitutions. At the post-positivism Constitutionalism, the realization of social rights receives special attention with the assumption of supremacy and normativity of the Constitutions, while the judiciary participates in the realization of democracy, not only as applicator of laws, but also as the guardian of constitutionality of the acts and administrative omissions, creatively contributing to the constitutional achievement, filling gaps and normative state omissions. In this aspect, the supply of medicines, whose costs can not be supported by the individual, keep a close connection with the right to life, health and dignity of the human being, as the subject of numerous lawsuits directed against the Public Administration. Such phenomenon has caused intense debate regarding judicial activism and legitimacy of these decisions, particularly on the need to define what are the limits and possibilities considering the principle of separation of powers and the principle of reserve of the possible; bieng this the problematic developed in this research. Thus, this research aims to verify the legitimacy of judicial decisions that determines to the Public Administration the compulsory providing of medicine to those who can not afford the cost of their treatment, as well as, contribute to the dogmatic constructions of parameters to be observed by judicial interference. Regarding the methodology, this research has an investigative and descriptive caracter and an theoretical approach based on bibliographical data collection (judicial and doutrine decisions) that received qualitative treatment and dialectical approach. As a result, it is known that the judicial decision that determines the supply of medicines to those individuals who can not afford them with their own resources is legitimate and complies with the democratic principle, not violating the principle of separation of powers and the reserve of the possible, since the judicial decison is not stripped with an uniform and reasonable criteria, failing to contain high burden of subjectivism and witch signifies a possible exacerbation of functions by the judiciary, suffering, in this case, of requirement of legal certainty. It is concluded that the Court decision that determines the government the providing of medicine to those who can not afford the cost of treatment should be based on parameters such as: the protection of human dignity and the minimum existencial principle, the inafastable jurisdiction principle; compliance critique of the possible reserve principle; subsidiarity of judicial intervention; proportionality (quantitative and qualitative) in the content of the decision; the questioning about the reasons for non-delivery of the drug through administrative via; and, finally, the attention not to turn the judiciary into a mere production factor of the pharmaceutical industry, contributing to the cartelization of the right to health

A ascensão de aspectos do common law no sistema processual civil brasileiro: uma crítica à aplicação da jurisprudência e à doutrina dos precedentes judiciais

Pós-graduação em Direito - FCHS

A construção histórica do direito do trabalho como resistência à aplicação do pós-positivismo

O advento da teoria pós-positivista de Robert Alexy teve seus efeitos sentidos no Direito do Trabalho, principalmente por passar a ser constantemente mencionada em decisões trabalhistas. O presente trabalho se propõe, então, a dois objetivos centrais: a partir da análise da principal obra de Robert Alexy, Teoria dos Direitos Fundamentais, em cotejo com a jurisprudência trabalhista, demonstrar que nessas decisões não há, de fato, a aplicação da teoria pós-positivista, tal qual construída pelo jurista alemão e, posteriormente, que, ainda que fosse aplicada corretamente, ela própria é de todo incompatível com o Direito do Trabalho, em virtude da construção histórica deste ramo.

Meta-theories in research: positivism, postmodernism, and critical realism

No scholar or researcher is able to provide robust evidence that counters the scant reflection on metatheory – mostly ontology and epistemology – underlying management studies in general, and industrial marketing and purchasing research in particular. This paper is a contribution to the indispensable discussion of metatheoretical alternatives in research, and most importantly, the strengths and shortcomings thereof, and respective implications on research questions, objectives, and findings.

An Efficient Protocol For The Generation Of Monocyte Derived Dendritic Cells Using Serum-free Media For Clinical Applications In Post Remission Aml Patients.

Protocols for the generation of dendritic cells (DCs) using serum as a supplementation of culture media leads to reactions due to animal proteins and disease transmissions. Several types of serum-free media (SFM), based on good manufacture practices (GMP), have recently been used and seem to be a viable option. The aim of this study was to evaluate the results of the differentiation, maturation, and function of DCs from Acute Myeloid Leukemia patients (AML), generated in SFM and medium supplemented with autologous serum (AS). DCs were analyzed by phenotype characteristics, viability, and functionality. The results showed the possibility of generating viable DCs in all the conditions tested. In patients, the X-VIVO 15 medium was more efficient than the other media tested in the generation of DCs producing IL-12p70 (p=0.05). Moreover, the presence of AS led to a significant increase of IL-10 by DCs as compared with CellGro (p=0.05) and X-Vivo15 (p=0.05) media, both in patients and donors. We concluded that SFM was efficient in the production of DCs for immunotherapy in AML patients. However, the use of AS appears to interfere with the functional capacity of the generated DCs.

Temporomandibular Dysfunction Post-craniotomy: Evaluation Between Pre- And Post-operative Status.

To identify risk factors associated with post-operative temporomandibular joint dysfunction after craniotomy. The study sample included 24 patients, mean age of 37.3 ± 10 years; eligible for surgery for refractory epilepsy, evaluated according to RDC/TMD before and after surgery. The primary predictor was the time after the surgery. The primary outcome variable was maximal mouth opening. Other outcome variables were: disc displacement, bruxism, TMJ sound, TMJ pain, and pain associated to mandibular movements. Data analyses were performed using bivariate and multiple regression methods. The maximal mouth opening was significantly reduced after surgery in all patients (p = 0.03). In the multiple regression model, time of evaluation and pre-operative bruxism were significantly (p < .05) associated with an increased risk for TMD post-surgery. A significant correlation between surgery follow-up time and maximal opening mouth was found. Pre-operative bruxism was associated with increased risk for temporomandibular joint dysfunction after craniotomy.

Metals And (metallo)proteins Identification In Vitreous Humor Focusing On Post-mortem Biochemistry.

This work describes the evaluation of metals and (metallo)proteins in vitreous humor samples and their correlations with some biological aspects in different post-mortem intervals (1-7 days), taking into account both decomposing and non-decomposing bodies. After qualitative evaluation of the samples involving 26 elements, representative metal ions (Fe, Mg and Mo) are determined by inductively coupled plasma mass spectrometry after using mini-vial decomposition system for sample preparation. A significant trend for Fe is found with post-mortem time for decomposing bodies because of a significant increase of iron concentration when comparing samples from bodies presenting 3 and 7 days post-mortem interval. An important clue to elucidate the role of metals is the coupling of liquid chromatography with inductively coupled plasma mass spectrometry for identification of metals linked to proteins, as well as mass spectrometry for the identification of those proteins involved in the post-mortem interval.

Taurine Supplementation Reduces Blood Pressure And Prevents Endothelial Dysfunction And Oxidative Stress In Post-weaning Protein-restricted Rats.

Taurine is a sulfur-containing amino acid that exerts protective effects on vascular function and structure in several models of cardiovascular diseases through its antioxidant and anti-inflammatory properties. Early protein malnutrition reprograms the cardiovascular system and is linked to hypertension in adulthood. This study assessed the effects of taurine supplementation in vascular alterations induced by protein restriction in post-weaning rats. Weaned male Wistar rats were fed normal- (12%, NP) or low-protein (6%, LP) diets for 90 days. Half of the NP and LP rats concomitantly received 2.5% taurine supplementation in the drinking water (NPT and LPT, respectively). LP rats showed elevated systolic, diastolic and mean arterial blood pressure versus NP rats; taurine supplementation partially prevented this increase. There was a reduced relaxation response to acetylcholine in isolated thoracic aortic rings from the LP group that was reversed by superoxide dismutase (SOD) or apocynin incubation. Protein expression of p47phox NADPH oxidase subunit was enhanced, whereas extracellular (EC)-SOD and endothelial nitric oxide synthase phosphorylation at Ser 1177 (p-eNOS) were reduced in aortas from LP rats. Furthermore, ROS production was enhanced while acetylcholine-induced NO release was reduced in aortas from the LP group. Taurine supplementation improved the relaxation response to acetylcholine and eNOS-derived NO production, increased EC-SOD and p-eNOS protein expression, as well as reduced ROS generation and p47phox expression in the aortas from LPT rats. LP rats showed an increased aortic wall/lumen ratio and taurine prevented this remodeling through a reduction in wall media thickness. Our data indicate a protective role of taurine supplementation on the high blood pressure, endothelial dysfunction and vascular remodeling induced by post-weaning protein restriction. The beneficial vascular effect of taurine was associated with restoration of vascular redox homeostasis and improvement of NO bioavailability.

Effects Of Programmed Physical Activity On Body Composition In Post-pubertal Schoolchildren.

To assess body composition modifications in post-pubertal schoolchildren after practice of a physical activity program during one school year. The sample consisted of 386 students aged between 15 and 17 years and divided into two groups: the study group (SG) comprised 195 students and the control group (CG), 191. The SG was submitted to a physical activity program and the CG attended conventional physical education classes. Body composition was assessed using body mass index (BMI), percentage of body fat (%BF), fat mass (FM), and lean mass (LM). A positive effect of the physical activity program on body composition in the SG (p<0.001) was observed, as well as on the interaction time x group in all the variables analyzed in both genders. A reduction in %BF (mean of differences = -5.58%) and waist circumference (-2.33cm), as well as an increase in LM (+2.05kg) were observed in the SG for both genders, whereas the opposite was observed in the CG. The practice of programmed physical activity promotes significant reduction of body fat in post-pubertal schoolchildren.

Post Hoc Analysis Of The Patricia Randomized Trial Of The Efficacy Of Human Papillomavirus Type 16 (hpv-16)/hpv-18 As04-adjuvanted Vaccine Against Incident And Persistent Infection With Nonvaccine Oncogenic Hpv Types Using An Alternative Multiplex Type-specific Pcr Assay For Hpv Dna.

The efficacy of the human papillomavirus type 16 (HPV-16)/HPV-18 AS04-adjuvanted vaccine against cervical infections with HPV in the Papilloma Trial against Cancer in Young Adults (PATRICIA) was evaluated using a combination of the broad-spectrum L1-based SPF10 PCR-DNA enzyme immunoassay (DEIA)/line probe assay (LiPA25) system with type-specific PCRs for HPV-16 and -18. Broad-spectrum PCR assays may underestimate the presence of HPV genotypes present at relatively low concentrations in multiple infections, due to competition between genotypes. Therefore, samples were retrospectively reanalyzed using a testing algorithm incorporating the SPF10 PCR-DEIA/LiPA25 plus a novel E6-based multiplex type-specific PCR and reverse hybridization assay (MPTS12 RHA), which permits detection of a panel of nine oncogenic HPV genotypes (types 16, 18, 31, 33, 35, 45, 52, 58, and 59). For the vaccine against HPV types 16 and 18, there was no major impact on estimates of vaccine efficacy (VE) for incident or 6-month or 12-month persistent infections when the MPTS12 RHA was included in the testing algorithm versus estimates with the protocol-specified algorithm. However, the alternative testing algorithm showed greater sensitivity than the protocol-specified algorithm for detection of some nonvaccine oncogenic HPV types. More cases were gained in the control group than in the vaccine group, leading to higher point estimates of VE for 6-month and 12-month persistent infections for the nonvaccine oncogenic types included in the MPTS12 RHA assay (types 31, 33, 35, 45, 52, 58, and 59). This post hoc analysis indicates that the per-protocol testing algorithm used in PATRICIA underestimated the VE against some nonvaccine oncogenic HPV types and that the choice of the HPV DNA testing methodology is important for the evaluation of VE in clinical trials. (This study has been registered at ClinicalTrials.gov under registration no. NCT00122681.).

Effect of cement type and water storage time on the push-out bond strength of a glass fiber post

This study investigated the effects of the cement type and the water storage time on the push-out bond strength of a glass fiber post. Glass fiber posts (Fibrekor, Jeneric Pentron) were luted to post spaces using a self-cured resin cement (C&B Cement [CB]), a glass ionomer cement (Ketac Cem [KC]) or a resin-modified glass ionomer cement (GC FujiCEM [FC]) according to the manufacturers’ instructions. For each luting agent, the specimens were exposed to one of the following water storage times (n=5): 1 day (T1), 7 days (T7), 90 days (T90) and 180 days (T180). Push-out tests were performed after the storage times. Control specimens were not exposed to water storage, but subjected to the push-out test 10 min after post cementation. Data (in MPa) were analyzed by Kruskal-Wallis and Dunn`s test (α=0.05). Cement type and water storage time had a significant effect (p<0.05) on the push-out bond strength. CB showed significantly higher values of retention (p<0.05) than KC and FC, irrespective of the water storage time. Water storage increased significantly the push-out bond strength in T7 and T90, regardless of the cement type (p<0.05). The results showed that fiber posts luted to post spaces with the self-cured resin cement exhibited the best bonding performance throughout the 180-day water storage period. All cements exhibited a tendency to increase the bond strength after 7 and 90 days of water storage, decreasing thereafter.

Influence of intraradicular post and crown ferrule on the fracture strength of endodontically treated teeth

The aim of this study was to investigate the fracture strength of endodontically treated teeth restored with different posts and variable ferrule heights. Sixty freshly extracted human canines were treated endodontically and randomly assigned to 6 groups (n=10), being restored with custom-made cast post-and-core (CP0 and CP3 groups), prefabricated post and composite resin core (PF0 and PF3 groups), and composite resin (CR0 and CR3 groups). The CP0, PF0 and CR0 groups presented no ferrule and the CP3, PF3 and CR3 presented 3 mm of coronal structure. All teeth were restored with full metal crowns. The fracture strength was measured in a universal testing machine at 45o to the long axis of the tooth until failure. Data were analyzed statistically by 2-way ANOVA and Tukey's test (?=0.05). When the mean fracture strength values were compared (CP0 group - 820.20 N, CP3 group - 1179.12 N; PF0 group - 561.05 N; PF3 group - 906.79 N; CR0 group - 297.84 N; and CR3 group - 1135.15 N) there was statistically significant among the groups (p<0.05), except for the three groups with 3 mm of coronal remaining, which were similar to each other. The results of this study showed that the ferrule in crowns promoted significantly higher fracture strength in the endodontically treated teeth.