Doctrinal Divergence Research Articles

As nuances do controle de constitucionalidade nos entes municipais com ênfase nas disposições jurisprudenciais

The present work aims to study the nuances of judicial review in municipal entities, defi ning its parameters and emphasizing especially the jurisprudential constructions. For this purpose, the descriptive method was used, supported by research articles, bibliographical research of doctrinal works in jurisprudence of the Superior Courts, as well as materials available on the internet. These documents were then read and, through the results obtained, a broad, critical and refl ective discussion was carried out, which culminated in the general conclusion that the concentrated judicial review is applicable to municipal norms, but not fully, a since it has limited parameters. As a rule, the said control is carried out using the norms present in the State Constitution as a parameter, through the local Court of Justice, through the initiative of legitimate parties also provided for in the State Charter. Thus, only in the face of norms of mandatory reproduction is the Federal Constitution used as a parameter, for the purpose of controlling municipal constitutionality, avoiding confl icting decisions with the supreme norm of the Brazilian legal system. In this sense, it is important to highlight that this possibility arose from jurisprudential constructions, not being expressly provided for by law. In addition, despite the existence of doctrinal divergence, the impossibility of concentrated control of constitutionality using Municipal Organic Laws as a parameter has been demonstrated. That said, given municipal regulations that violate it, it should be restricted to legality control.

Principle-axiological analysis of the applicability of TST summary 357

The importance of research focused on the applicability of TST Summary 357 is intended to resolve points that still have doctrinal divergences. Therefore, this article aimed to verify: how does the applicability of Summary 357 of the TST occur regarding the use of witness evidence in the Labor Court? Therefore, the objective was to analyze the essence, object, applicability and doctrinal divergences on the aspects that involve TST Summation 357. Thus, what is intended with this work, in a broad sense, is the understanding of the general aspects of Labor Law and the Labor Process, emphasizing the importance of the use of witness evidence in the Labor Court and proposing a more complete analysis on the suspicion of the witness. More specifically, it is intended to focus on aspects related to Summary 357 of the TST, bringing a reflection about its implication, applicability and non-applicability, in order to resolve practices related to the theme exposed. Aiming, also, a critical focus on doctrinal understandings and the understanding currently defended by the Superior Labor Court. In addition, it seeks to demonstrate the evolution of such positioning, concluding, therefore, with the ratification of Summary 357 of the TST and the defense of the points that characterize the non-applicability of this Summary.

Campaign Speech and the Universal Dilemma in the Common Law of Elections: A Lesson from the Anglo-American Divide

On first – or second, or third – glance, the courts of the United States and the United Kingdom have adopted hyperbolically divergent responses to state regulation of campaign speech. In both nations, highest levels of government have variously sought wide-ranging control over campaign practice. Courts have subsequently had to weigh how such legislation can be reconciled with individual speech rights and legitimate democratic process. While the House of Lords and Supreme Court in the UK (hereinafter, the UKSC) has declined to strike down campaign speech legislation, the US Supreme Court has so aggressively intervened that one leading election law scholar has characterized the result as “a regulatory structure created by the Court.” The scholarship offers a diverse array of explanations for this trans-Atlantic divide, ranging from constitutional doctrine to differing cultural commitments. Yet through a close analysis of select cases from each jurisdiction, this chapter argues that investigation of the underlying doctrinal divergence reveals a deeper conceptual parallel: democratically determined electoral procedure may pose certain insoluble paradoxes for judicial review. The extensive, norm-peddling approach of American campaign finance law and the legislature-trusting reluctance of the UKSC to strike down campaign regulation both reveal a basic problem that courts confront when reviewing democratically selected law. Where legislation does not grossly contravene a higher constitutional instruction, courts can only strike down electoral legislation through ultimately adverting to normatively independent principles. Advancement of such principles extends beyond the legal analysis that is characteristic of constitutional interpretation. The divergent reactions of the UKSC and Supreme Court to this problem affirm its centrality to electoral regulation in general and campaign speech in particular. The interventionist posture of the US Supreme Court has taken the form of a (critically savaged) assessment of the corrupting effects of campaign financing. Leaving aside the wisdom of transmuting the campaign finance query into a corruption query, this chapter observes that this analytic framing simply confirms that robust engagement with the regulation of campaign speech necessarily involves advancing stand-alone normative principles. By approaching the topic through a reflection upon corruption – a richly political concept that expresses substantive moral commitments – the Supreme Court affirms the richly normative character of the endeavour. Conversely, the UKSC has been perhaps more plaintive in recognizing the fundamental challenge posed by a standing government advancing a vision of how future campaigns should unfold, but has declined or evaded robust engagement with the problem. The UKSC’s retreat to the narrowest doctrinal grounds to resolve disputes reveals its aversion to normative engagement regarding foundational democratic principles. Ultimately, both courts reveal the judicial discomfort with engaging in core democratic reasoning, even if they adopt differing strategies of reframing or declining. Neither approach can resolve the incompatibility between the electorate’s autonomy to set procedures for its own governance and the judiciary’s obligation to review such terms; and both courts are haunted by this tension. This chapter explores this problem by first establishing the differing characters of judicial approaches to campaign finance speech. It then considers the obvious explanations for the differences between the US and UK treatments of constitutional speech and observes that such explanations cannot explain the divergent qualities of the jurisprudential traditions. Finally, it considers the broader tension between the legal interpretation and democratic self-determination to explain the presence of maximalist and minimalist development in the two jurisdictions.

Enforced Performance in Common Law Versus Civil Law Systems: An Empirical Study of a Legal Transformation

Abstract Legal systems differ about the availability of specific performance as a remedy for breach of contract. While common law systems deny specific performance in all but exceptional cases, civil law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practice of litigants and courts actually reflects the doctrinal divergence. An equally lively debate revolves around the normative question: Should the injured party be entitled to enforced performance or rather content itself with monetary damages? Very few studies have used qualitative methods, vignette surveys, or incentivized lab experiments to empirically study these issues, and none has quantitatively analyzed actual court judgments. Against the backdrop of the comparative law and theoretical debates, this Article describes the findings of a quantitative analysis of judgments concerning remedies for breach of contract in Israel during a sixty-nine-year period (1948–2016). The judicial and scholarly consensus is that the Remedies Law of 1970 revolutionized Israeli law by turning enforced performance from a secondary, equitable relief to the primary remedy for breach of contract. We nevertheless hypothesized that no such revolution has actually occurred. In fact, neither the common wisdom that the resort to enforced performance has significantly increased following the 1970 Law, nor our skeptic hypothesis that no such increase has occurred, were borne out. According to our findings, the resort to enforced performance actually decreased considerably after 1970. We examine several explanations for this result, and show that this unexpected phenomenon is associated with the increasing length of adjudication proceedings. The theoretical and policy implications of these findings are discussed.

As responsabilidades solidária e subsidiária no federalismo brasileiro: contextualização em matéria de saúde e posicionamento do Supremo Tribunal Federal

Objetivo: o artigo analisa a distinção entre responsabilidade solidária e subsidiária dos entes federativos para prestação de ações e serviços de saúde e contribuir com a indicação de critérios objetivos para a fixação dessas responsabilidades. Metodologia: foram verificados os dispositivos constitucionais e legais, trazendo-se a divergência doutrinária e o posicionamento do Supremo Tribunal Federal (STF) quanto à fixação da responsabilidade dos entes federativos como solidária. Resultados: as discussões devem se aprofundar para que a responsabilidade subsidiária dos entes federados seja determinada segundo critérios objetivos de descentralização, regionalização e hierarquização definidos pelos gestores do Sistema Único de Saúde (SUS). Conclusão: necessidade que o STF avalie mais detidamente o modelo de governança do SUS, constituído por regras infraconstitucionais próprias, que trazem a autonomia dos entes federados para disciplinar suas atribuições na proteção e concretização do direito à saúde.

The Long Road Back to Skokie: Returning the First Amendment to Mask Wearers

In 1978, when the Seventh Circuit upheld the First Amendment right of Nazis to march in Skokie, Illinois, the protection of mask wearers was not far behind. Since then, doctrinal paths have diverged. While the Supreme Court continues to protect hate speech, mask wearing has been increasingly placed outside First Amendment protection. This essay seeks to get to the bottom of this doctrinal divergence by addressing the symbolic purposes of mask bans – rooted in repudiating the Ku Klux Klan – as well as the doctrinal steps taken over the past 40 years to restrict the First Amendment claims of mask wearers. It also highlights the dangers posed by the current, state-friendly mask law doctrine in an age of technological growth, mass-surveillance, and a move to anoint Antifa as the new Ku Klux Klan. The essay ends with a call for courts to restore mask wearing to its rightful place in the First Amendment pantheon.

A ausência de medidas de políticas urbana de ordenação e controle do uso do solo e a responsabilidade civil dos municípios em razão de danos decorrentes de reiterados fenômenos da natureza

O presente trabalho busca analisar em que medida o Município pode ser responsabilizado em razão de sua omissão em evitar, ou tomar medidas para prevenir danos que decorram de reiterados fenômenos da natureza. A pesquisa inicia com uma análise da evolução histórica da responsabilidade civil Estatal (lato sensu) e a divergência doutrinária sobre a responsabilidade por omissão e, na sequência, aborda quais são as causas que podem excluir o dever de indenizar da Administração Pública. Por fim, é apreciado, frente à Lei nº 12.608/2012, que alterou e acrescentou alguns dispositivos no Estatuto da Cidade, quais os deveres do Município para evitar que a população esteja sujeita a risco de desastres e quais as consequências desta previsão para a responsabilidade civil da municipalidade.

The constitutionally protected content according to section 1 of article 5 of the Constitutional code of procedure

This article will analyze the grounds of inadmissibility of the amparo process established in paragraph 1 of article 5 of the Peruvian Constitutional Procedural Code. The essential features of the amparo process and the grounds of inadmissibility will be briefly presented. Likewise, reference will be made to doctrinal divergences to define the constitutional content and will be explained by the fact that according to the Fourth Final and Transitional Provision of the Constitution and Article V of the Preliminary Title of the Constitutional Procedural Code, it is possible to configure the constitutional content of a right such as it has done in Constitutional Court of Peru in several cases.

The rise of trust decanting in the United States

In a trust decanting, a trustee who under the terms of a trust (the first trust) has a discretionary power over distribution uses that power to distribute the trust property to a new trust (the second trust) with updated provisions, leaving behind the sediment of the first trust’s stale provisions. This article canvasses the rise of trust decanting in American trust practice, taking notice of its common law origins, its contrast with traditional American doctrine on trust modification and termination, the proliferation of state trust decanting statutes, and several areas of doctrinal divergence across the states.

ENVIRONMENTALLY ORIENTED TAX LAW AND THE BRAZILIAN TAX SPECIES

The theme of this paper is environmental taxation in Brazil and, more specifically, the function of tax in regard to environmental protection – taxation on fiscal and non-fiscal purposes –, as well as the possibilities and limits of the environmental use of tax species referred to in the Brazilian Constitution. The objectives are, on the one hand, to demonstrate that taxes can be created with an environmental orientation, and, on the other hand, to expose doctrinal divergences and convergences concerning the modalities of environmental taxation regarding its use in the different kinds of Brazilian tax, especially tax and contribution to intervene in the economic domain. The article uses bibliographic and legislation research as a method to show the reader the existence of agreements and disagreements among some of the authors who approach the subject. It concludes that, except for the divergence related to tax, the doctrine allows for the use of the several Brazilian tax species to contribute to environmental preservation.

Property along the Tort Spectrum: Trespass to Chattels and the Anglo-American Doctrinal Divergence

In attempting to apply the tort of trespass to chattels to the virtual world of the Internet, courts in the United States encountered a seemingly odd, yet significant doctrinal issue. While the traditional English action allowed for a claim without any showing of harm or damage (like it did for trespass to land), American (state) common law appeared to insist upon a showing of ‘actual damage to the chattel’ before the tort became actionable. This article undertakes a conceptual analysis of the tort of trespass to chattels, focusing on the difference between English and American common law on the requirement of actual damage. It then attempts to construct a theoretical argument for this doctrinal divergence, based on the vindicatory and corrective functions that the tort is presumed to perform and employs a transaction costs model from law and economics to rationalize the variance between the English and American versions of the tort. It concludes by noting that while there may indeed be efficiency gains to be had from the American version of the tort, the realization of the same may require greater certainty in the law's understanding of ‘damage’ and ‘harm’ than has been seen in the recent past.

Non-Conceptuality, Critical Reasoning and Religious Experience: Some Tibetan Buddhist Discussions

The Dalai Lama is fond of quoting a verse attributed to the Buddha to the effect that as the wise examine carefully gold by burning, cutting and polishing it, so the Buddha's followers should embrace his words after examining them critically and not just out of respect for the Master. A role for critical thought has been accepted by all Buddhists, although during two and a half millennia of sophisticated doctrinal development the exact nature, role and range of critical thought has been extensively debated. In general doctrinal difference in Buddhism has been seen as perfectly acceptable, reflecting different levels of understanding and therefore different stages on the path to enlightenment. Buddhism has tended not to look to or expect doctrinal orthodoxy, although there has always been a much stronger impetus towards orthopraxy, and common (largely monastic) code and behaviour has perhaps played a comparable role in Buddhism to common belief and creed in some other religions. Nevertheless an acceptability of doctrinal divergence has not lessened the energy and vigour devoted to lengthy and sometimes fiercely polemical debate between teachers and schools. This was nowhere more so than in Tibet, where doctrinal debates—sometimes lasting all night—to the present day form the central part of a monastic education in most of the largest Tibetan monastic universities.

Al-Bīrūni's Arabic version of Patañjali'sYogasūtra: a translation of the second chapter and a comparison with related texts

The following study contains a translation of al-Bīrūnī's rendering into Arabic of the second chapter of Patañjali'sYogasūtracum commentary. (On this point see our translation of al-Bīrūnī's rendering of the first chapter of Patañjali'sYogasūtra.) This translation is based on Ritter's edition of the Arabic text. Comparison has been made with the unique MS of Ritter's text: Köprülü, 1589, folios 412a–419a (written on the margins). We have also compared the text with parallel passages and expressions in al-Bīrūnī'sIndia. In some cases the passages inIndiaare identical, while in others they show differences. Sometimes these differences are merely stylistic. In other cases there is a doctrinal divergence.