It is a relatively uncontroversial opinion that the Brazilian president Jair Bolsonaro has undermined the rule of law and its constitutional institutions. This contribution concentrates on the ...Brazilian apex courts to show how a mix of resilience in day-to-day work and a few confrontational positions played an important role in safeguarding the autonomy and independence of the judicial branch in Brazil during Jair Bolsonaro’s term.
In this paper, we examine a database containing court rulings and debates (acórdãos) of the Brazilian Supreme Court (“STF”) spanning from 1999 to 2018. Our objective is to analyze the relationship ...between gender and how judges behave when interacting with each other. Specifically, we investigate whether female judges are more likely to be interrupted by their colleagues during oral debates. Our data are built on real‐time public interactions between the judges, as recorded in the Court's transcripts. The results show that female STF judges are interrupted more often than their male counterparts. While male judges display no specific effects, all three female judges in our data display a very significant and positive probability of being interrupted, as compared to their male colleagues participating in the same deliberations. These results show that, even in institutions designed to protect rights of political minorities, including women, gender dynamics, stereotypes and hierarchies can affect the functioning of courts in visible ways, with potential impacts on the rest of the judiciary and the legal profession. They also suggest that merely increasing the number of female judges, without addressing underlying gender dynamics and procedural rules in the judicial decision‐making process, is insufficient to tackle the disadvantages women face within those institutions.
The exploration of legal documents in the Brazilian Judiciary context lacks reliable annotated corpus to support the development of new Natural Language Process (NLP) applications. Therefore, this ...paper presents a step toward exploring legal decisions with Named Entity Recognition (NER) in the Brazilian Supreme Court (STF) context. We aim to present a case study on the fine-grained annotation task of legal decisions, performed by law students as annotators where two levels of nested legal entities were annotated. Nested entities mapped in a preliminary study composed of four coarser legal named entities and twenty-four nested ones (fine-grained). The final result is a corpus of 594 decisions published by the STF annotated by the 76 law students, those with the highest average inter-annotator agreement score. We also present two baselines for NER based on Conditional Random Fields (CRFs) and Bidirectional Long-Short Term Memory Networks (BiLSTMs). This corpus is the first of its kind, the most extensive corpus known in Portuguese dedicated for legal named entity recognition, open and available to better support further research studies in a similar context.
•Case study on the fine-grained annotation task of legal decisions.•Manually annotated corpus for Named Entity Recognition in Portuguese.•Annotation task process composed of three phases: two training efforts and one final.•Corpus of 594 decisions published by the STF and annotated by the 76 law students.•Annotated corpus open and available in the Brazilian Judiciary context.
Partant d’une comparaison contrastive entre la formation des décisions collégiales de la Cour suprême des États-Unis (SCOTUS) et du Tribunal fédéral suprême brésilien (STF), fondées sur le principe ...de majorité, ce travail met en perspective l’affirmation, commune dans le champ juridique au Brésil, selon laquelle le STF aurait été forgé à l’image de la Cour suprême nord-américaine, en opérant ainsi un rapprochement entre les deux systèmes.
A partir da comparação por contraste entre a formação das decisões colegiadas da Suprema Corte dos Estados Unidos da América (SCOTUS) e do Supremo Tribunal Federal Brasileiro (STF), orientadas pelo princípio da maioria, o presente trabalho problematiza a afirmação, corrente no campo jurídico brasileiro, de que o STF teria sido forjado à imagem e semelhança da Suprema Corte Norte-Americana, aproximando-se assim os dois sistemas.
Starting with a contrastive comparison between the formation of collegial decisions by the Supreme Court of the United States (SCOTUS) and the Brazilian Supreme Federal Court (STF), based on the majority principle, this paper puts into perspective the assertion, common in the Brazilian legal field, that the STF was forged in the image of the North American Supreme Court, thus bringing the two systems closer together.
As in many countries around the world, the debate about tax planning concerns its limits, and there is a clash between two perspectives on the subject. On the one hand, there is a traditional ...perspective, whose advocates argue for the need to preserve the legal security of the taxpayer and the use of a more formalist interception method of tax rules. On the other side is the contemporary perspective, which seeks to balance the need to protect the taxpayer against abuse of tax authorities, but without neglecting the fact that the taxpayer sometimes practices abusive tax planning. At the center of this debate is the Federal Supreme Court (STF), a Brazilian constitutional court, which will examine the constitutionality of the sole paragraph of Article 116 of the National Tax Code, which for some academics is considered the Brazilian GAAR. The present paper aims to introduce and analyze some landmark points of the debate in Brazil, highlighting the legal reasoning deployed in this debate and the challenges for de constitutional process.
Judicial institutions which provide legal mechanisms for conflict resolution play an important role in maintaining the social order of complex societies. Weaknesses in the performance of their duties ...can contribute to social conflict developing into outright violence that will be beyond the management of law and the courts. In this sense it is strategic to study the judicial system and the decision-making processes of its judges if one wants to understand the ways conflicts are dealt in a certain place and time. In this article we focus our attention on the role of the Brazilian Federal Supreme Court as custodian of the Constitution and the discourses that its decision-making construct when dealing with human rights issues. Specifically we set out to understand how the opinions of Brazilian Supreme Court Justices are constructed when deciding cases concerning freedom of religion. The timeline considered covers 31 years, from 1988 to 2019, a period that begins with the promulgation of the new constitution in 1988 (which symbolically reinstated democracy in the country after the end of the period of military rule that began in 1964) up to the present day. We begin by presenting the legal definition of freedom of religion in Brazil which constitutes the normative background of the discussion. We then discuss our project, stressing the methodological approach we have adopted and finally we present our data findings. We identified 39 cases in total of which 11 were selected and analyzed using the methodology of Semiolinguistic Discourse Analysis in order to define the semantic field related to freedom of religion in Brazil. Even though the number of cases is not large it is possible to identify some features of Brazilian legal culture which are also recurrent when dealing with religious freedom. One of these features is the absence of consensus-building logic in the Justices’ opinions—we attribute this to what we term the disputatio mindset—which contributes to continuing institutional instability and legal insecurity. Our findings suggest that these Supreme Court decisions frequently lack the strong level of rational consistency that lower courts require if they are to identify clear guiding principles that can control the outcomes of new cases
ABSTRACT This paper investigates how far the Brazilian Supreme Court has argumentatively committed itself to upholding same-sex marriage in the face of prospective restrictive legislation based on ...the reasoning the court used in its 2011 ruling about same-sex domestic partnerships. The paper concludes that the separation of litigation over domestic partnerships and marriage may have led to the risk of a regressive turn concerning gay rights on this matter.
Health is a fundamental right, essential for protection and maintenance of life, assuming the dignity of the human person, having an important role in the complex social reality of which we are a ...part. As such, the right to health should be constantly protected, respected and guaranteed through social and economic politics, in favor of the interest of each indivi-dual and his or her own community. In this context, when called upon to rule, the Brazilian Supreme Court, as guardian of the Constitution, has the duty to deliver responses capable of providing physical, mental and social well-being to all, aligned with the provisions of the Constitution, in order to ensure appropriate legal and/or political significance in its decisions. Therefore, it is relevant to assess if the activities of the Court, in concrete cases, can effecti-vely respect the best legal practices and/or policy and, for this purpose, and to fit it into this paradigm, it was selected a specific decisum
Abstract
Sortition, i.e. random appointment for public duty, has been employed by societies throughout the years as a firewall designated to prevent illegitimate interference between parties in a ...legal case and agents of the legal system. In judicial systems of modern western countries, random procedures are mainly employed to select the jury, the court and/or the judge in charge of judging a legal case. Therefore, these random procedures play an important role in the course of a case, and should comply with some principles, such as transparency and complete auditability. Nevertheless, these principles are neglected by random procedures in some judicial systems, which are performed in secrecy and are not auditable by the involved parties. The assignment of cases in the Brazilian Supreme Court is an example of such a procedure, for it is performed using procedures unknown to the parties involved in the judicial cases. This article presents a review of how sortition has been historically employed by societies and discusses how Mathematical Statistics may be applied to random procedures of the judicial system, as it has been applied for almost a century on clinical trials, for example. A statistical model for assessing randomness in case assignment is proposed and applied to the Brazilian Supreme Court. As final remarks, guidelines for the development of good randomization procedures are outlined.
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