Legal Community Research Articles

Tax Norm and Irrationality in the Decisions Federal Supreme Court (STF): Judges-Robots Solve?

Recently, decisions of the Federal Supreme Court (STF) in tax matters has been causing concerns in the legal community. Not infrequently, they reflect systemic irrationality and little case with the fundamental rights and guarantees of the taxpayer. In this context, this scientific article investigates whether the use of judges-robots in the Supreme Court can solve this problem or qualify the tax decisions made in it, or not. The approach is by phenomenological-hermeneutic method and the procedure adopted is the bibliographic and jurisprudential review restricted to the object of the proposed analysis. As conclusions surprise a non￾negligible numerical progress of inconsistencies in the decisions of tax disputes examined by the Supreme Court, without indications or possibilities of reversal in the panacea of judges-robots, predictive models or algorithms programmed by the human mind.

Theorizing Access to Civil Justice

AbstractDespite more than half a century of reform efforts, access to civil justice is still understood to be in a state of crisis. Part of the reason for this is because there is no consensus among the legal community on the meaning of justice in this context. This paper seeks to provide a much-needed theoretical underpinning to the access-to-civil-justice movement. It advances ‘justice as fairness,’ as articulated by the American philosopher John Rawls, in conjunction with Lesley Jacobs’ model of equal opportunities, as a suitable theory in which to frame the access-to-civil-justice movement. I explain why this framework is appropriate for pluralistic democracies like Canada and how it can be used to define measures of justice. This exercise is thus not simply a theoretical discussion, but rather is intended to be used as a practical framework to assess current and proposed policy initiatives.

Mass probation: Temporal and geographic correlation of county-level probation rates & mental health in North Carolina

High community incarceration rates are associated with worse community mental health. However, it remains unknown whether higher rates of probation, a form of criminal legal community supervision, are similarly associated with worse community mental health. Our objective was to evaluate temporal and geographic correlations of county-level probation and mental health rates separately and to assess the association between county-level probation and mental health rates, measured by self-inflicted injury and suicide. We performed ecological analyses using North Carolina administrative data (2009–2019) and used repeated cross-section, multivariable spatial error models. From 2009 to 2019, probation rates trended downward while self-inflicted injury and suicide remained stable. We found positive spatial autocorrelation suggesting that there are spatial determinants of probation and self-harm, though less so for suicide. Hot spot analyses showed local variation with high self-harm and suicide rates being clustered in rural Western North Carolina and high probation rates being clustered in rural Eastern North Carolina. Probation was positively associated with self-inflicted injury and suicide. For example, in 2018, a 1 percentage point increase in probation was associated with a 0.05 percentage point increase in self-harm in 2019 (95% CI: 0.03, 0.06), meaning that in a county of 100,000 people, an increase in 1000 county residents being on probation would be associated with an increase in 50 self-harm injuries. High county-level probation rates may exert collateral damage on the mental health of those living in areas with much of the population under state control. These findings emphasize that the criminal legal system is not separate from communities and that future public health research and advocacy must consider these collateral consequences of probation on communities.

GENERALIZATION OF JUDICIAL PRACTICE: THEORETICAL ASPECT

The generalization of judicial practice is a necessary condition for its unity throughout the country, a mandatory basis for training future legal practitioners and improving the professional skills of representatives of all legal communities related to judicial activity, a necessary element of any scientific research. Purpose: to show that the role of the generalization of judicial practice in ensuring its unity is determined by the balance between the two undesirable extremes of imposing an external legal position on judges and the judges' complete disregard for the need for unity of judicial practice within the entire national legal system. Methods: structural-system analysis and synthesis, concrete sociological, comparative legal. Conclusion: the generalization of judicial practice makes it possible to bridge the gap between theory and practice in jurisprudence, to ensure the best development of both.

Methods of enforcing obligations and the astrent institute in civil law of Russia

The formation and development of human society, the deepening, expansion and complication of economic, economic and interpersonal relations between interacting subjects, as well as a high degree of integration and convergence of modern political, economic and legal systems of various states inevitably entail the formulation of significant scientific problems and challenges for researchers in a wide variety of fields. In this sense, the doctrine and practical implementation of the branch of civil law are no exception: the rapidly changing conditions of economic activity and trade and economic turnover naturally force the legislator and the scientific community to search for new, more modern and relevant instruments of legal regulation of a wide range of civil legal relations between subjects that in essence, they form the economic turnover within a particular society and state. This trend, with varying degrees of intensity, affects all sub-sectors and institutions of civil law, including ways to ensure civil law obligations: undoubtedly, today there are many ways for development. Ensuring the proper performance of civil obligations by the subjects of civil law is one of the most important and, as a result, controversial, problematic issues both in domestic and foreign civil law doctrine and in extensive law enforcement practice. In this regard, of central importance is the scientific consideration and study of specific ways to ensure the fulfillment of obligations, many of which are gradually being legally enshrined in the legislation of the Russian Federation. At the same time, due to the lack of real practical experience, as well as the insufficiency of doctrinal sources, the essence of many of them, as well as the relevance and necessity of their application, causes serious disagreement among the scientific and professional legal community. One of these institutions at this stage is the institute of astrent. The article is devoted to the consideration of some problematic aspects of determining the theoretical essence of astrent, which may affect subsequent clarifications or changes in the text of the relevant regulatory legal acts of the Russian Federation. The aim of the work is an attempt to determine the theoretical essence of the institute of astrent in connection with the dual nature of its most significant legal features.

PROSPECTS OF STRENGTHENING THE PUBLIC ROLE IN JUDGES SELECTION PROCEDURES IN UKRAINE (institutional aspects)

The article explores certain issues of strengthening public control over the activities of the judiciary as a prerequisite for restoring public trust in judicial institutions. The possibility of wider involvement of public representatives in the formation of selection commissions of judges, in particular in the formation of the composition of the High Qualification Commission of Judges of Ukraine, is being considered as an effective tool for fulfilling this task. Options for changing qualitative approaches to the formation of the composition of the High Qualification Commission of Judges of Ukraine are being considered, including those involving the inclusion of non-judge representatives in its composition. The solutions proposed in the article are based on the practice of two European countries (the Netherlands and Lithuania) and the United States of America. These countries pay great attention to the involvement of the public in the process of selecting judges, as a necessary prerequisite for the legitimization of the judiciary and the formation of public trust. The article analyzes the changes that Ukrainian legislation went through in the part of forming the architecture of bodies that carry out the selection of judges. Separately, positive trends were noted in the effort to strengthen public control over the activities of the judiciary by starting the work of a new representative body of the Public Integrity Council, the purpose of which is to assist the High Qualification Commission of Judges of Ukraine in the selection of professional and honest candidates for the position of judges. The article also examines issues related to the professional affiliation of members of the selection commissions of judges and the search for a reasonable balance between the judicial part of said commissions, the professional legal community and representatives of the public who are not related to the legal sphere. This approach is considered as an important prerequisite for further democratization of judicial power.

Judge’s Dissenting Opinion in a Criminal Proceeding: A Critical View

The idea of a judge's right to a dissenting opinion being one of the key guarantees of the principle of judicial independence is perceived by a legal community as an axiom. For this reason, the institution of a dissenting opinion extremely rarely happens to be the subject of a critical analysis in a legal science. Meanwhile, such an analysis reveals a whole complex of contradictions between the right of a judge to a dissenting opinion and certain principles of judicial proceedings, as well as the negative effect of the use of such a right by judges manifested in a decrease in the authority of justice. The purpose of the study is to clarify the reasons for granting judges in criminal proceedings the right to express a dissenting opinion and, on this basis, to decide on the expediency of preserving the relevant institution in procedural law. Achieving this goal involves solving a set of tasks related to the study of the correlation of the institution of a judge’s dissenting opinion with the principles of adversarial parties and independence of judges, the requirement of secrecy of the meeting of judges as well as the study of dissenting opinion as a tool for individualizing the figure of a judge who does not agree with the decision made in the case. A dialectical method served as the methodological basis of the study. In addition, general scientific methods of analysis, synthesis and a systematic approach were used as well as special legal methods: historical-legal, legal interpretation and logical-legal interpretation. The results of the study demonstrated that a dissenting opinion is attached importance to as a means of protecting the professional honor of a judge allowing him to openly declare his disagreement with the decision. According to this approach, the opposition of two values is exposed — the professional honor of a judge and the authority of justice. Their comparison allows us to assert that the authority of justice is a priority value that cannot be sacrificed for the sake of providing the judge with the opportunity to individualize his figure. In this regard, it is concluded that it is necessary to eliminate the institution of a judge’s special opinion in procedural law.

Turning Deficiency Into Proficiency: Reversing the Ineffective Assistance of Counsel Epidemic in the Legal Community

Turning Deficiency Into Proficiency: Reversing the Ineffective Assistance of Counsel Epidemic in the Legal Community

Memories of the Employees of the Institute of Legislation. The 1990s

In the centenary history of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, the 1990s are characterized by the prompt scientific response of employees to the socio-economic processes taking place in society, expert support for the legislative activities of the Government, Parliament, the release of serious theoretical publications that have received recognition from the legal community. Among them are Concepts of the development of Russian legislation and others. The civilistic and other scientific schools of the Institute developed, scientific and practical conferences were held, candidate and doctoral dissertations were defended, the Journal of Russian Law was established, which has been published monthly for more than a quarter of a century Visits were conducted to the Russian regions to study the experience and assist in the formation of regional legislation.

A Code of Laws, Which Did Not Exist: How Began to Teach the Siete Partidas in the Universities

The author analyzes the history of the Siete Partidas of Alfonso X the Wise to establish when they began to be taught at universities and why the Partidas became the subject of lawyers’study in so late. He emphasizes that the Partidas were perceived by Castilian lawyers and notaries precisely as local law, as opposed to ius commune, represented by the texts of the Justinian Corpus and the norms of canon law. The author sees the reason for this in the language in which the Partidas was composed — the romance language never became a «language for the high culture», which means that the texts created in it had practically no chance of becoming scholastic authorities. At the end of the article, the author shows that at universities began to study the Partidas only in the midst of 18th century, after the creation of the departments of the so-called «derecho patrio». Up to this point, the legal community had kept the texts of royal law out of the university classrooms, although the most intelligent and astute of jurists recognized the need to study it.

Selecting and ranking leading cases in Brazilian Supreme Court decisions

Abstract This work studies quantitative measures for ranking judicial decisions by the Brazilian Supreme Court [Supremo Tribunal Federal (STF)] and selecting leading cases, which are understood as those with broadness of influence on different legal fields. The measures are based on a network built over decisions whose cases were finalized in the Brazilian Supreme Court between 01/2001 and 12/2019, which were obtained by crawling publicly available STF records. Three ranking measures are proposed; two are adaptations of the PageRank algorithm, and one adapts Kleinberg’s algorithm. Such measures are compared with respect to agreement on top 100 rankings; we also analyze each robustness measure based on self-agreement under perturbation. We examine whether the resulting quantitative ranking is congenial to a qualitative intuition of what the legal community usually considers as relevant precedents. We also discuss some possible criteria of relevance in the seek for patterns that suggest how quantitative and qualitative measures would better align. The ranking of leading cases and relevant decisions improved after building decision networks without irrelevant appeals and decisions that overflow the court offers a starting point to discuss the role of STF in the Brazilian judicial system. In our last work, both versions of PageRank and Kleinberg algorithms produced different rankings and all of them were robust with respect to 10% and 20%-perturbation levels, but none of them retrieved leading cases at the top of these rankings. Then, we took a further step in the studies of the STF decision network and we introduced better filtering of network nodes guided by legal expertise on the works of the Supreme Court. We also introduced more fine-grained perturbance levels to understand the impact of such filters in the STF decision network. We concluded that after filtering low-relevance decision types, the STF decision network is still robust under 10%-perturbation, but it presents higher degradation by increasing perturbation levels. The two versions of PageRank still produce different rankings. Kleinberg’s algorithm provides a different ranking, with many relevant criminal cases. Although we improved algorithms rankings filtering decisions from the network, which represents an important methodological step, there is still room for improvement. Given that relevant decisions are well ranked after filtering out a large amount of irrelevant decisions, the results set a starting point to discuss the role of STF in the Brazilian judicial system.

The Concepts of Jan Kopczyński, President of the Supreme Administrative Tribunal, Regarding the Formation of the Council of State in the Second Polish Republic

The paper focuses on a proposal to reform the lawmaking process in the Second Polish Republic through the establishment of a Council of State. The idea of creating a Council of State to improve the quality of legislation was widespread among the Polish legal elite of that time; many representatives of the legal profession presented their ideas in various periodicals. Particularly prominent among the supporters of this concept was the president of the Supreme Administrative Tribunal, Jan Kopczyński, who submitted for discussion by his fellow lawyers several proposals he had prepared for the establishment the Council of State. The paper describes the debate over Kopczyński’s proposals by juxtaposing them with the concepts of other representatives of the legal doctrine of the Second Polish Republic and the solutions that were applied by the government in that period. The ideas for the creation of the Council of State focused on two foreign models. The first was the French Conseil d'État, which combined legislative and administrative-court powers. The second model was the Romanian Legislative Council, whose tasks were strictly limited to legislation, without the administrative-court functions. Jan Kopczyński’s concepts were closer to the Romanian model. Kopczyński submitted three proposals to establish a Council of State, but none of his proposals was implemented. A substitute for the Council of State was to be the Legal Council to the Minister of Justice, established in 1926 by a regulation of the President of the Republic, but it quickly ended its activities encountering both reluctance of the parliament and a frigid reception by the ruling elite. The fact that the Council of State was never established, although it enjoyed widespread approval in the legal community, proves that politics always has the upper hand in a clash with legal idealism.

РОЗВИТОК ЮРИДИЧНОЇ ОСВІТИ В УМОВАХ ГЛОБАЛІЗАЦІЙНИХ ВИКЛИКІВ

The article examines the development of legal education in the context of globalisation challenges. Particular attention is paid to the role of the educational process in the context of the COVID-19 pandemic. The author analyses the use of online tools to ensure continuity of education. The author draws attention to the importance of maintaining the proper quality of legal education in the context of distance learning, which remains relevant today. The author shares the understanding that in the near future, law departments and faculties with face-to-face education will remain a priority for students who want to obtain a legal education. In particular, the author examines the factors that influence the development of legal education in Ukraine at the current stage, namely: the security situation and martial law, Ukraine's obligations as a candidate for EU accession, and the obligations arising from the global Sustainable Development Goals, in particular, SDG 4 regarding quality education. The author draws attention of the scientific community to the need to find a balance between the competing requirements of theoretical academic education and the practical legal profession. Particular attention is paid to the activities and documents of the International Association of Law Schools, in particular, the Singapore Declaration on Global Standards and Outcomes of a Legal Education and the Judicial Standards of a Legal Education. In the author's opinion, their principles may become the basis for future efforts aimed at improving legal education in Ukraine. The author notes the activities of the International Academy of Comparative Law and the evolution of the topics of general reports and discussions at the International Congresses of Comparative Law with a view to improving the training of lawyers. The author focuses on some attempts by the legislator to find new approaches to addressing the issues of legal education improvement, in particular, the status of the Concept of Legal Education Development. Attention is drawn to the need for a systematic approach of the Ukrainian legislator to the development of legal education and secu8ring support from the legal community. The author comes to the conclusion that the reform of legal education, from the standards and concepts of legal education development to the methodology and forms of the educational process, should reflect changes in the society and take into account tendencies and comparative aspects of legal education in other countries, especially in the context of globalisation challenges.

Spitting at Jim Crow

Spitting at Jim Crow

Socioeconomic analysis of bioproducts derived from babassu nut breakers pyrolysis in legal amazonia communities

Lignocellulosic biomass residues can generate interesting materials for the chemical and food industries. Physical activation processes were developed by cold pressing and slow pyrolysis, as well as physical chemical activation with zinc chloride (ZnCl2), to produce bio-based products, including bio-oil (30%) and biochar (31%), with good yields. Charcoal and biooil provided good results, respectively, with regard to adsorption capacity (357 m2 g-1 of surface area BET) and the possibility of extracting chemical compounds (phenols with 45.81% and aldehydes with 32.76%). Moreover, the key economic performance indicators of the process were analyzed, and the results indicate that the proposed process is economically feasible and attractive with $422,416.10 profits. Finally, after dialoguing with the babassu nut breakers and understanding their needs, the feasibility of economically developing the contacted families through technology transfer for extracting the oil, cake, biochar, and bio-oil from babassu coconuts was studied, demonstrating the possibility of income generation based on the profitability achieved in this study.

Improper informed consent of the patient: legal and expert assessment

The purpose of the study is to draw the attention of the legal and medical community to the problem of insufficient awareness of the patient about the upcoming medical intervention; to identify the scope of interaction between the court and the expert in relation to disputes related to improper information. Despite the fact that the conclusion about improper informing of the patient implies a legal assessment of the circumstances, special medical knowledge is needed to identify some defects of voluntary informed consent. The expert, in particular, can answer the questions of the court about what risks are characteristic of a certain type of medical intervention (perforations, bleeding, etc.) and how high their probability was in relation to a particular patient (taking into account his state of health, anatomical features); whether there were alternative treatment options. Based on the explanations received, the court will be able to assess whether the patient's attention was focused on the relevant circumstances, whether his consent was conscious, and the complications that occurred were foreseeable.

Правовые и иные смежные аспекты по вопросу оказания медицинской помощи онкобольным в условиях рисков распространения и противодействия коронавирусной инфекции (COVID-19) и ее штаммам: «на стыке» профессиональных воззрений и опыта

A lively interest in the topic of the real state of affairs in the field of healthcare, regarding the determination of the level of cancer incidence in Russia, the search and development of fundamental and progressive approaches to the tactics of treating cancer patients, the quality of palliative care, and even during a situation associated with a high level incidence of COVID-19 and acute respiratory viral infections, can hardly be questioned in terms of substantiating its relevance. The subject of the study is the modern system of providing medical care to cancer patients, from the point of view of legal regulation and medical practice, existing and predicted “pros” and “cons”. Tasks: to prove the relevance of the problem in the quantitative and statistical aspect, to reveal common and special characteristic elements (“traits”), to identify risks, legal bases and their assessment, the most successful legal solutions in the appropriate direction, as well as to draw practice-oriented conclusions, and, first of all, related to the adoption of a new departmental order for the provision of medical care in Russia in the field of “oncology” from January 2022. In a methodological way, the empirical method of analysis, the method of synthesizing “legal matters” that define and provide a system of care for cancer patients in modern conditions of countering coronavirus infection, is quite actively used. The results obtained will be interesting for studying and taking into account in the environments of medical and legal communities interested in similar or related topics in rethinking, contrasting, developing scientific and medical legal, special, expert and other views and hypotheses.

Лингвокогнитивное моделирование категории "участник дискурса" (на материале интернет-мемов профессиональных сообществ юристов в социальных сетях)

The aim of the research is to identify semantic models of humorous utterances that express the stereotypical ideas of the lawyers’ professional community about the content of the categories of its participants in informal settings. The research methodology integrates two approaches: a critical analysis of discourse and a semantic approach to humour based on scripts by Salvatore Attardo and Victor Raskin. We applied the following analysis model: (1) discursive analysis of texts in accordance with the procedure presented in the papers of foreign and Russian scholars; (2) analysis of humour in accordance with the six-level model of analysis proposed by Attardo; (3) as the research includes transformed statements consisting of a complex of elements and their interrelationships to varying degrees, the methodology is supplemented by the theory of conceptual integration developed by Gilles Fauconnier and Mark Turner. The research methods are: discourse analysis, including standard techniques of communicative-pragmatic and semantic analysis; content analysis, the semantic categories of which are the parameters of the sociocommunicative level of the model, and the units are their typical lexical markers. The data include Internet memes constituting the content of professional legal groups on the social networks Instagram and Facebook. The data include 260 units. The analysis revealed a quantitative predominance in Internet memes expressing the subjects of legal discourse of models based on contrast and referential humour. The semantic dominants actualised in such models coincide with the stereotypical attitudes currently existing in society in relation to the legal community and its professional participants. The uneven distribution of models in accordance with the categories of participants indicates the predominance of reflection in relation to several professional participants – an advocate and a lawyer: intensity of professional activity and high fatigue, prestige of professional status and high social responsibility of professional participants, competence and professionalism (unprofessionalism), complexity and incomprehensibility of the language, high profit. In relation to non-professional participants (client/ accused/ defendant/ respondent/ witness), the stereotypes about their stupidity, greed, arrogance, venality are replicated. Referential models are distinguished by the diversity of the subjects represented and the uniformity of the meanings expressed: the subject’s originality of thinking, cunningness and resourcefulness. Semantic models based on conceptual integration were identified only in relation to professional participants – a lawyer. They actualise such values as professionalism, reliability, competence; stress associated with responsibility at work, danger and charm of the profession, special status; superiority; friendliness; help and superpowers of the professional.

Have the Honour: the Right of Public Entities to Protection of Business Reputation.

The article examines the reasons for the singularity of the nature of the protection of the business reputation of public entities, authorities of the Russian Federation, largely due to the specifics of the legal personality of these legal entities, as well as the historically established approach to the issue of compensation for damage caused to the business reputation of public subjects of law. The subject of the work is methods, procedural algorithms for protecting the business reputation of public entities, authorities, considered, among other things, for the objective assessment of relevant proposals for the creation of an appropriate regulatory framework and analysis of counter-interests of the legal community and business, ensuring at the same time effective and fair functioning of the institute of civil rights and freedoms. The purpose of the study is to formulate proposals for the development of regulations and parameters of legal regulation of methods, mechanisms for protecting the business reputation of public entities; to develop recommendations for amendments to a number of regulatory legal acts aimed at overcoming legal entropy in the absence of named permissible methods and procedural protection algorithms. The early examples of legal norms regulating the business reputation of the Russian state and its representatives are analyzed; Soviet and modern regulatory framework, judicial doctrine, law enforcement practice, including international one, on this issue. The evidence base has been collected and provided, indicating the existence of the powers and the need for domestic public entities to protect their business reputation in a civil order. Modern sources of reputational harm are investigated; proposals are formulated to modify the current legislation and the permissible degree of reception of international legal norms; decriminalization of approaches to protect the reputation of authorities and expanded application of civil legislation in matters of compensation for losses caused to public entities as a result of damage to business reputation, including by their officials, representatives.

Climate Change Policy: The Critical Role of Legal Scholarship in Shaping Sustainable Futures

The imperative to address climate change has never been more urgent. As the world grapples with increasing temperatures, rising sea levels, and extreme weather events, the role of legal scholarship in shaping policies for a sustainable future is increasingly critical. This letter aims to address the vital contribution of legal scholarship to climate change policy, emphasizing its unique position to bridge theory and practice, advocate for environmental justice, and facilitate the transition towards sustainable futures. By analyzing and proposing legal frameworks that prioritize adaptive capacity and social equity, legal scholars ensure that climate policies do not merely respond to environmental challenges but also contribute to building stronger, more just communities. In conclusion, the critical role of legal scholarship in shaping climate change policy cannot be overstated. As we navigate the complexities of global environmental challenges, the insights, analysis, and advocacy provided by legal scholars are indispensable in guiding our collective efforts towards a sustainable and equitable future. It is imperative that the legal community continues to engage with and contribute to the climate change discourse, ensuring that laws and policies not only address current environmental issues but also anticipate and mitigate future challenges. Let this letter serve as a call to action for legal scholars, policymakers, and society at large to recognize and leverage the unique contributions of legal scholarship in our global fight against climate change.