Jurisprudential Understanding Research Articles

Arbitrability under the new Brazilian arbitration act: a real change?

Since the enactment of the 1996 Arbitration Act, the arbitrability of disputes in Brazil followed the general rule in which disputes involving disposable patrimonial rights could be submitted to arbitration. In 2015, the Brazilian legislative enacted an Act amending some of the rules of the 1996 Act. The general approach to arbitrability did not change but there was an attempt to introduce provisions to the act regarding the arbitrability of disputes concerning consumer law, labour law, corporate matters, and the participation of the state or state-owned companies in arbitration. The first two efforts failed and the last two prospered. This article explores if the changes made to arbitrability by the new Act were actually necessary in face of the existing doctrinal and jurisprudential understanding of arbitrability of disputes in Brazil. It argues that the general approach to arbitrability already addressed the innovations brought by the new statute. As a result, it asserts that the changes in the law were not a novelty as the approach to arbitrability of disputes in Brazil was already settled by the 1996 Act as well as the case law.

REPERCUSSÕES FUNCIONAIS E FINANCEIRAS DECORRENTES DO EXERCÍCIO DO DIREITO DE GREVE PELOS SERVIDORES PÚBLICOS CIVIS

O presente trabalho tem por objetivo apresentar o atual entendimento jurisprudencial acerca do exercício do direito de greve pelos servidores públicos civis, previsto no artigo 37, VII, da Constituição Federal de 1988, sobretudo no que concerne aos efeitos funcionais e financeiros em decorrência de eventuais paralisações no âmbito do serviço público.

Plágio nos trabalhos acadêmicos: proposta de políticas institucionais de integridade

The practice of plagiarism, besides being reprehensible, is offensive to academic integrity. Even though it is extremely disapproved of, the spread of the use of plagiarism in end of course monographs and papers has been increasingly observed. The purpose of this paper is to discuss how doctrines, universities and jurisprudence have dealt with the issue and to present some proposals for plagiarism regulation in academia. It was observed that few universities have clear rules on the identification and punishment of plagiarism in academic texts. Even when they do exist, they are not always accompanied by a jurisprudential understanding on the identifying elements of the practice of plagiarism. From a study on the standards set by research funding agencies and decisions on the subject, suggestions are presented for the regulation of punishment regarding this practice in the academic realm. We conclude that plagiarism has been treated as if it were a teacher problem, when, in fact, it is an institutional problem. Respect for academic ethics should be a goal for all and the debate on the subject should involve both teachers and students.

Australasian Reflections on Modern Slavery

In early February 2012, a federal judge threw out a law suit brought by PETA claiming that whales were ‘enslaved’ by SeaWorld (Note 1). While it met a swift and sorry end, the law suit provides an opportunity for reflection upon what constitutes slavery in the modern context. We are familiar with the Roman “Spartacus” slave scenario and the classic American Civil War “Gone with the Wind” slavery scenario – but how comfortably do we connote modern exploitative labour situations, where individuals (human not animal), find themselves with no avenue of escape. The most commonly challenged modern slavery situations are those in brothels: to what extent do modern brothels in Australia cohere with our understandings of slavery? In a recent High Court decision, Justice Michael Kirby took a strongly different view from his fellow judges in that regard. And what are we to make of the PETA lawsuit claiming (unsuccessfully) that orcas in SeaWorld are enslaved to humans to do their unwilling bidding as entertainers? As a logical extension of that claim, ought we not view the doomed horses in the English Grand National as slaves? They also do their unwilling bidding as cash cows, many of them dying in agony as part of the very spectacle. Very many situations that potentially cohere with slavery today will not cohere with our traditional understandings and stereotypes let alone our modern and as yet not fully articulated understandings. This is a debate more familiar in the USA – yet while Australia has not had an entrenched system of human slavery, an emerging jurisprudence points to modern incarnations while also reinforcing arguments about the effective enslavement of many Aboriginal people during the period of assimilation: a period that gave rise to the ‘Stolen Generation’. The purpose of this article is to reflect upon this emerging jurisprudence and to suggest that while we are continuing to unlock new ideas about slavery in the modern context – both human and animal – but we are far from developing, historically, strategies for their abolition. The way forward, it is suggested, is to recognize as a first step in the human context, that exploitative modern labour situations may appear akin to slavery but need perhaps more appropriately to be dealt with as modern servitude; and as a second step that jurisprudential understandings of animal enslavement: exemplified by the orcas but also personified in events like the Grand National; may appear on the comparative legal agenda in future decades.

The Enigma of Civil Justice in Imperial China: A Legal Historical Enquiry

This article seeks to reveal the true nature of civil justice in China's imperial history. Developing on the ground-breaking findings of Huang, the author argues that China's imperial civil justice was neither ‘Kadi’ justice nor an elaborate form of civil justice based on Weberian formalism and procedural sophistication. Contrary to the view that the magistrate was unrestrained by the law and only played the role of a mediator, state law had profound influence over magisterial adjudication. Yet the magistrate did not apply the law in a positivist sense. The adjudicative discourse involved searching for a balanced solution that took into account the statutory law and non-statutory norms (local customs and Confucian moral values). However, civil justice in imperial China lacked fundamental attributes of a modern civil justice system, such as judicial specialization, an autonomous (and sophisticated) civil procedural regime and a systemic enforcement of civil law based on the jurisprudential understanding of individual rights. This article questions the benefit of straightjacket Weberian categorizations and argues that the true nature of China's imperial civil justice could only be revealed by considering the country's unique historical circumstances.

The Community Right to Counsel

Contrary to popular understanding, the Sixth Amendment right to counsel was originally a community right. The existing historical evidence reveals that what we now interpret as an individual right to counsel was, in the colonial era, commonly understood as a right that belonged to the general community. As a result, the conventional history is both incorrect and incomplete, misinforming our current jurisprudential and social understanding of the right to counsel. In response, this Article provides the missing historical and constitutional reasoning for the creation of the Sixth Amendment right to counsel. Critically, this collective right to counsel has import for our current regime of criminal punishment and sentencing. Since the Court has consistently relied on the colonial and Founding-era history to chart the boundaries of the modern right to counsel, we must fully understand the contours and ramifications of the historical right to counsel to plot our future path. Moreover, there are some important implications of my historical findings on the future of the right to counsel. I contend that when applied, the collective right to counsel has important implications for three aspects of the right to counsel: 1) self-representation; 2) appointed counsel; and 3) ineffective assistance of counsel, particularly in light of Padilla v. Kentucky. I conclude that invoking a collective right to counsel alongside an individual right to counsel would help ensure better outcomes for both criminal defendants and their communities.

“Amicus curiae”: democratização e legitimação do processo decisório de controle da constitucionalidade

Theoretical and jurisprudential research in order to examine the possibility of amicus curiae intervention in the constitutional process control. It presents ways of constitutionality control in brazilian law and the legislative changes and regulations occured after the enactment of the current federal constitution. It exposes the doctrinal and jurisprudential understanding about the role of amicus curiae. The work aims to demonstrate that the intervention of amicus curiae in the constitutional process control, including by way of exception, it cans contribute to the democratization and legitimation of the decisions in those cases.

The Strand Not Taken: The Taxing/Taking Taxonomy in American Property Law

Takings jurisprudence is struggling with a constant paradox. It is conventionally portrayed as chaotic and “muddy,” and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.This Article offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between takings and taxings. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.The main thesis of the Article is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank” analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is. Identifying American property law as conforming to two fundamental principles -- formalism of rights and strong market propensity -- but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand” in the property bundle, the Article explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Article shows why taxation is considered a “lesser evil” type of government coercion, how the taxing/taking dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and the control of assets.This type of systematic inquiry is very timely. American property law is nowadays located at a crucial crossroad, with its longtime foundational premises and convictions being vigorously reexamined in the face of the domestic and global economic crisis. Although it remains to be seen whether government measures taken in the months and years to come will create a major upheaval in the fundamentals of property law, it should be clear that any such major shifts will have inevitable profound influences on what may be wrongly viewed as “isolated” legal doctrines, including the taking/taxing taxonomy.

Global Climate Change and the Fragmentation of International Law

Born into the wider body of international law, the climate regime needs to be understood in light of preexisting regimes. By drawing on the current debate about fragmentation in international law, this article highlights challenges for international lawyers and policymakers in navigating the relationship between the climate regime and the biodiversity regime, and the relationship between the climate regime and the multilateral trading system. This article concludes that a narrow focus on conflicts misrepresents the multifaceted nature of climate change and precludes an adequate jurisprudential understanding of the relationship between the climate regime and other regimes. An improved understanding, particularly with respect to interactions with the biodiversity regime, requires a broadening of the debate that takes account of the institutional aspects of these relationships that may allow enhanced political cooperation and coordination. Further, international law, and in particular the emerging concept of systemic integration, has the potential to make a positive contribution to the climate‐trade interplay.

Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law

Because mainstream international law positivism in the tradition of Lassa Oppenheim (1858-1919) has sought to separate law from morals and from politics, many critics have dismissed this positivism as amoral, apolitical, and atheoretical. This article offers a reading of Lassa Oppenheim that challenges this view. Drawing on the jurisprudential theory articulated in Oppenheim's non-international law writings about conscience and justice, the author reads Oppenheim's adoption of an austere positivism in international law as a theoretically-grounded normative choice of a concept of law best suited to advance his moral and political values. The author thus treats Oppenheim's normative positivism as political, and considers it together with Oppenheim's advocacy of international society and balance of power as a statement of political conditions for international law. While concluding that the extent to which Oppenheim consciously accepted such a political and jurisprudential understanding of international law remains speculative, the author contends that main- stream positivism has had more enduring appeal because it has been at least sub-consciously open to such readings.