How to read judicial decisions?

Justice
Publicado em 14 Apr. 2016. Última atualização em 14 Apr. 2016
ACTIVITY DESCRIPTION

Summary: 

The activity sought to develop in the students the capacity to read judicial decisions. The question that guided the development of the practical activities (workshop) were: Why and how to search judicial decisions? What judicial decision can reveal to lawyers and not lawyers? What are the searching tools that available and how to use them? How to identify the reason to decide: What are the argument types presented in a judicial decision? What the arguments reveal? Why should we use them in the elaboration of arguments in the opinions, petitions and non-legal works? What is the “brief case” and how to utilize it as a tool to extract the reason of a judicial decision? How to build a consistency of a judged person? 

Objective: 

- GENERAL GOALS: The activity was developed in two different environments:

Model 1: FEA-USP

The class “Law institutions for economists”, of the DFD from FD-USP responsibility, approximates the rationality of law and economics from the related themes of jurisdictional uncertainty, Judiciary Court and review of economic plans, globalization, global governance, regulation and financial crisis. The course promotes the first academic contact to economy students from FEA-USP with contemporary economical-legal problems, specially selected for this audience. The class adopts the perspective of legal sociology for the cases treatment and it wants to proportionate to the student the reflection about the law impact at the economic system, as well as the economy about the legal system and promote questions as rights and social transformation, legitimacy, effectiveness, economics governance and legal pluralism.

The pedagogic strategy that was chosen sought to the approximation of economy’s students from important legal debates since their empirical and theoretical studies, which allowed the questioning and selective depth of contemporary issues of social and economic interest. The reading materials also have normative texts and judicial decisions. The objective was to present to the economy students the structure of legal reasoning and build a dialogue interdisciplinary between law and economics from these concrete cases.

Thus, beyond the legal -economical content, the course worked with learning tools to make the future economist able to read and understand a judicial decision or a law text, or also like how to choose strategically legal ways for the implementation of public policies. The practical workshop “how to read a legal decision” and the brief case tool were inserted in this wide objective.

 Model 2: DJ/FD-USP and SAL/MJ

This workshop was featured in a punctual and intensive law training for future lawyers or not, who are interested in understand the rationality of a judicial decision and the impact of the Judiciary Court at the implementation of a law or a public policy. The presentation of the brief case tool and the debate about a specific judicial decision, which interest the audience, are inserted on this pedagogic context.

The training realized by the DJ/FD-USP and by the SAL/MJ sought to enable the law students and public policies makers, respectively, to understand the Judiciary paper at the function of the legal system and how it could impact the political system, in the implementation of a law or a policy. Thus, Future DJ interns were interested to develop a strategic actuation, of social transformation, via Judiciary Court. Additionally, ensure the rights’ access to the population excluded layer presupposes the comprehension of how anterior judicial decisions could be used in actual concrete cases. The student needs to know how to extract the judicial positioning and the reason to decide a concrete case and use it on his petition. Also, it is a case for public policies formulators from SAL. They were interested in understanding how the legislation, clearly the penal and the administrative, are reconfigured by the action of the Judiciary. In addition, in view of the role of formulators to advice the Executive Court on their law projects, they need to understand how to read a judicial decision, also how to extract the relevant arguments and elaborate technical feedback based on these positions. Finally, this comprehension determines their strategic actuation in the analysis and at the confection of future laws and policies.

- SPECIFIC GOALS: the activity aims to working the vision of how the Judiciary interferes and defines the content of a law rule, the Judiciary Court comprehension as political authority, besides the explanation of the content of a judicial decision and how to use it on professional activity (legal or other). Additionally, it explains how to decide a judicial decision and how to separate relevant elements of the judicial positioning;

- DEVELOPED ABILITIES: It aims to develop the following abilities: analysis and comprehension of legal -technical material; to identify and extract the legal -technical positioning; to understand the paper and impact of the Judiciary Court at the legislative-political system; to identify the research and analysis resources at judicial decisions. 

Dynamics: 

- TEACHING METHOD: Socratical dialogue, debates, workshops and case method.

- REQUIREMENTS: In relation to the professor, the preparation was based on the following script:

1) It is suggested that the professor prepares an expositive class with the maximum of 1 hour (or 1 hour and 30 minutes, depending of the class’ profile and previous knowledge of the audience) about the Judiciary paper and its potential impact at the implementation of laws and public policies, as well as its relation with the chosen case study. You can see the presentation suggestion in attachment 2 of this document (slides), and a suggestive list of cases in attachment 1 (book).

The slides match the expositive classes about the Judiciary Court, which culminate at the workshop about “how to read judicial decisions”. It aims to present a theoretical reference for analysis of concrete decisions, such as: identify why the Judiciary Court can be considered a political authority and what is it importance, especially for students who are not lawyers, of study and understand judicial decisions.

This theoretical reference is from law sociology and political science. It can or not be used by other professors. This ponderation is related to the course that the workshop is inserted in.

If the focus is the judicial decision content only, it is recommended to use only the slides from the 2nd part of attachment 2 (from slide 31), which introduce the brief case tool and identify the parts of a judicial decision from an exemplary case (attachment 1).

The slides can be used in full or just some parts, before or after the concrete cases discussion or to introduce or to consolidate debates. The choice depends of the previous students’ knowledge and their time destined to the course.

Additionally, the slides are related to the bibliography proposed on this formulary, below, and in attachment 1. At the second part of the attachment 2 (from slide 31), the brief case is presented and an exemplary case can be discussed by the professor (STF and the homosexual marriage, for example). This exemplary case was chosen for the relative simplicity of the legal arguments (if compared to the exercises cases of attachment 1) and the its regular presence in the media, which can approximate the debate of a student who is not a lawyer.

2) As previous reading to the professor, it is suggested those ones indicated inside the item a, below (“Judiciary Court and political system”). The other will depend of the relation with the chosen case study and/or of the interest of the professor to intensify his knowledge inside the Law sociological theoretical perspective and of the political science about the Judiciary Court.

a) Judiciary Court and Political System

- Taylor, Matthew. "O Judiciário e as políticas públicas no Brasil", Dados vol. 50, n. 2, Rio de Janeiro, 2007.

- Silva, Felipe Gonçalves; Rodriguez, José Rodrigo (Org.). Manual de sociologia jurídica. São Paulo: Saraiva, 2013, Capítulos 12, 13, 14 e 15.

- Vieira, Oscar Vilhena. “Supremocracia”, Revista Direito GV, 8(2), 2004. p.441-464.

b) Legal rationality versus economic rationality

- Fabiani, Emerson. Direito e crédito bancário no Brasil. São Paulo: Saraiva; Direito GV, 2011, Capítulo 1.

- Falcão, Joaquim; Schuartz, Luís Fernando; Arguelhes, Diego, “Jurisdição, incerteza e Estado de Direito”, Revista de Direito Administrativo - RDA, 243, 2006, p. 79-112.

- Lima Lopes, José Reinaldo de. “Direito e economia: os caminhos do debate”, In: Lima, Maria Lúcia P.. (Org.). Agenda contemporânea: direito e economia - 30 anos de Brasil. São Paulo, SP: Saraiva, 2012.

- Faria, José Eduardo. Direito e economia na democratização brasileira, São Paulo, Malheiros, 1993, p. 9-62.

c) Material that based the creation of the workshop and teaching materials

- Duran, Camila Villard. Direito e moeda: o controle dos planos de estabilização monetária pelo Supremo Tribunal Federal, São Paulo: Saraiva / Direito GV, 2010, Capítulo 1.

- Edwards, Linda L. Practical case analysis, West, St. Paul, 1996.

- Ost, François. “Júpiter, Hercules e Hermes: tres modelos de juezes”, Doxa nº 14, 1993.

- Stake, Robert E. “Case Studies”, Handbook of Qualitative Research, Denzin, Norman K. and Lincoln, Yvonna S. (eds.), Sage Publications, London, 1994.

d) Complementary Reading

- Campilongo, Celso Fernandes. Política, sistema jurídico e decisão judicial, Max Limonad, São Paulo, 2002, Capítulo 1.

- Cappelletti, Mauro. Juízes legisladores? Porto Alegre: Fabris, 1999.

- Castel, Robert. Figures professionnelles : dispositions règlementaires et genèse de l’expertise – l’expert mandaté et l’expert instituant. Situation d’expertise et socialisation des savoirs. Saint-Etienne: CRESAL, 1985.

- Faria, José Eduardo Campos de Oliveira. “A crise do Judiciário no Brasil: algumas notas para discussão”, Revista do Ministério Público 30, Lisboa, 2002, pp.9-28.

- Pinheiro, Armando Castellar. “Judiciário, reforma e economia: a visão dos magistrados”, Texto para Discussão 966. Brasília: Ipea, 2003.

- ____ (org.). Judiciário e Economia no Brasil. São Paulo, Sumaré, 2000.

Ost, François. “Quelle jurisprudence, pour quelle société?”, Archives de Philosophie du Droit nº 30, 1985.

- Ost, François. Droit et Intérêt – Entre droit et non-droit : l´intérêt, vol. II, Publication des Facultés Universitaires Saint-Louis, Bruxelles, 1990.

- Ost, François; Kerchove, Michel Van. “De la pyramide au réseau? Vers un nouveau mode de production du droit? ”, Revue Interdisciplinaire d´Etudes Juridiques nº 44, 2000. 

- Sadek, Maria Tereza (Org). Uma introdução ao estudo da justiça. São Paulo: Ed. Sumaré, 1995.

- Santos, Boaventura. “Introdução à Sociologia da Administração da Justiça”, in José Eduardo Faria (org.), Direito e Justiça: a função social do Judiciário, São Paulo: Ática, 1989.

- Shapiro, Martin; Sweet, Alec Stone. On Law, Politics, and Judicialization. Oxford: Oxforf Press, 2002.

- Tate, C. Neal. “Why the expansion of judicial power?”, In: Tate, C. Neal; Vallinder, Torbjörn. (Orgs), The global expansion of judicial Power, New York: New York University Press, 1995.

- ______. “When the courts go marching in”, In: Tate, C. Neal; Vallinder, Torbjörn. Orgs. The global expansion of judicial power. New York: New York University Press, 1995.

- Taylor, Matthew M. “Veto and voice in the Courts: policy implications of institutional design in the Brazilian judiciary”, Seminário IPE/USP n° 9, São Paulo, 2005.

- Vianna, Luis werneck et al. A judicialização da política e das relações sociais no Brasil. Rio de Janeiro: Renavan, 1999.

- ________ . Corpo e alma da magistratura brasileira. Rio de Janeiro: Renavan, 1997.

3) It is expected that the professor is able to rebuild the debate between the legal rationality applied by the Judiciary Court and the socioeconomic problem underlying to the chosen case study.

4) The professor should rebuild the steps of the “brief case” inside classroom. This the reasoning model suggested to be followed and presented. Questions will be suggested by the own brief case for each part of the judicial decision (as you see in attachment 1). An attentive reading of this tool should be done. Additionally, in the classroom dynamics, the professor should use the brief case to rebuild the concrete case, which was read by the students previously.

5) Beyond the judicial decision, the professor can add newspaper news about that specific case and present how the media deals the Judiciary Court’s decision. This resource allows the student get himself inside the temporal context of that decision, what increase his interest and participation during the Socratical dialogue.

In relation to the students, each course had their own preparation, as follows:

 

Model 1

They had to have a previous reading the content of a judgment or specifics votes (30-40 pages maximum). Also, they should see suggestion for exercises and cases at the attachment A, of this document. Previously, the students had access to the book and to the brief case model (attachment A) that showed the problematic of the Judiciary paper in the application and at the interpretation of the law rule. In addition, for a small group, which showed a first “reading” of the case to the rest of the class, there was a previous debate with the law students (previous monitoring). They were introduced to the legal -technical language of legal decision and should explain to other students what they learned with the law students’ orientation.

 

Model 2

They had a book previous reading and of the brief case model (attachment B) as well as carefully selected judgment or sentence parts (3-4 pages maximum, cases from attachment B). This model was inserted in a punctual and specific law training for students who are not lawyers or freshman law students. For this reason, it was recommended that the previous reading was really reduced (in total, 13-15 pages maximum). Also, they should see suggestions for exercises and cases in attachment A, of this document. Finally, a special attention was given to the brief case model (fragment of attachment A)

 

- DEVELOPMENT OF THE DYNAMICS: the activity’s development occurred in two different forms inside each environment:

 

Model 1: 120 students

Classroom meeting (3 to 4 class/hours):

a) Expositive content class of the professor to the students who are not lawyers (up to 1 hour or 1 hour and 30 minutes: Judiciary Court paper and what is a judicial decision, see attachment B as a suggestion);

b) brief presentation of the reason to decide the judicial case by the group of 8 students (10-15 minutes); and,

c) collective questioning and reconstruction of the case with the classroom – Socratical method from the brief case items (1 hour and 30 minutes: What are the relevant case’s questions? How was each question answered by the court/judge? Everybody agrees? They include more possibilities? What are the normative orientations that can be extracted? Etc.).

The 8 economy students made a (a) presentation of the main arguments (b) they also encouraged, with the professor, the debate with the rest of course’s student, (c) who should, at least, made the previous judgement reading. The group of 8 also said the main difficulties founded on the reading of this technical text and shared with everybody the orientations gave the law students. The pre-monitory allows the previous identification of the founded problems by students who are not lawyers. Thus, it makes the professor work easier in the classroom.

Not only at FEA-USP, but also at the DJ/FD-USP and SAL/MJ trainings, the workshop was well received by the audience. The participation was effective, facing the interest on the decision content. The brief case was seen as an analysis tool to be used in future professional activities.

In “law institutions for economists” (FES-USP), the case method and the brief case were introduced at the course class 2 and 3, containing 2 distinct cases to be worked on (total of 13 meetings). It helps a lot to attract the interest for the law class right at the beginning, for its practical demonstration and its use for economists (both content and methodology).

 

The worked cases inside the FEA course were the following:

 

Class 2 – Case study: The Supreme Federal Court and the applicability of the Consumer Protection Code – CPC - to financial institutions.

Required reading (workshop)

• ADIn 2.591/DF: menu, Ministers Nelson Jobim and Eros Grau votes, debates after the Minister Eros Grau vote (pages 345-350), record extract.

• ADIn-ED 2.591/DF: menu, Minister Eros Grau vote, debates’ parts (pages 103-105; 107-117), record extract.

• Legal texts mentioned in the judicial decision

 

Complementary reading

• Duran-Ferreira, C. “O STF e a construção institucional das autoridades reguladoras do sistema financeiro: um estudo de caso das ADIns”, Revista Direito GV 5, n. 1, pp. 67-94, 2009, available at: http://direitogv.fgv.br/sites/direitogv.fgv.br/files/5_-_o_stf_e_a_const...

 

Class 3 – Legal Rationality x Economical Rationality: the economic stabilization plans in the Brazilian democracy

 

Required reading (Socratic dialogue with evaluation: first part of the class)

• Faria, José Eduardo. Direito e economia na democratização brasileira, São Paulo, Malheiros, 1993, p. 9-62

 

 Required reading (seminar: second part of the class)

• ADIn MC 534: menu, Ministers Celso de Mello, Néri da Silveira and Paulo Brossard votes, record extract.

• Full ADIn 534

• Legal texts mentioned in the judicial decision

 

Complementary reading

• Moreira Neto, Diogo de Figueiredo. “A reforma monetária dos ativos líquidos no Plano Brasil Novo”, Revista de Informação Legislativa nº 108, 1990. [Erudito]

• Duran, C.V. “O Supremo Tribunal Federal, os Planos Econômicos de Estabilização e a Construção da Moldura Jurídica do Poder Monetário”, Revista da Procuradoria Geral do Banco Central do Brasil 4 , n. 1, jun. 2010, available at:http://www.bcb.gov.br/?id=REVISTAPGBCED&ano=2010

• Lopes, José Reinaldo de Lima. “Direito e economia: os caminhos do debate”, in: Maria Lucia L M Padua Lima. (Org. ), Direito e economia 30 anos de Brasil - Tomo 1. 1 ed. São Paulo: Editora Saraiva, 2012, pp. 231-260.

 

The book (attachment A) was delivered to the students on the first day of class. Two groups of 8 economy students have applied themselves to work with one case study, in a more cautious way (class 2 and 3, above). Previously, they got together with law students to discuss the judicial decision. In the classroom, after the first part of the expositive class (slides from attachment B of this document), conducted by the professor exclusively, the group of students presented the main case arguments. After 15 minutes, the debate was open to everybody in class. The professor and the group of the workshop lead the debate and raised questions of the brief case: What is the central reasoning of the judgment? Is it possible to identify a winner vote? What are the relevant questions that are treated by the STF members? Did all of them converge to the same decision? How can we identify the final positioning of the body? What is the legal impact for the subsequent economic question? Did all of them arrive to the same conclusion? Are there any controversies in the classroom? (see brief case model in attachment A, of this document and proposal questions).

 

This dynamic was followed not only during class 2 but also during class 3. The brief case stayed as a help material for both classes. (attachment A of this document).

 

Model 2: 25 to 30 students

Meeting of 3 class/hours in the classroom:

a) Expositive class (up to 1 hour: Judiciary paper and what is a judicial decision);

b) Small group debates (4 to 5 students at maximum) about, at least, two cases, one each time (up to 20 minutes in total – the professor went around the groups and answered any punctual doubts); and;

c) Collective rebuild of the reason of decision of the judgment – Socratical method from the brief case items (1 hour and 20 minutes divided in two moments, one for each case: What are the relevant case’s questions? How was each question answered by the court/judge? Everybody agrees? What are the normative orientations that can be extracted? Etc.).

 

 Not only at FEA-USP, but also at the DJ/FD-USP and SAL/MJ trainings, the workshop was well received by the audience. The participation was effective, facing the interest on the decision content. The brief case was seen as an analysis tool to be used in future professional activities.

During DJ/FD-USP and SAL/MJ trainings, the students had read previously only the handbook and the suggested exercises (cases 3 to 6, attachment A), working on two cases/exercises only for each training (attachment A of this document). After the expositive class conducted by the professor (reduced version from the attachment B, focusing on the second part of the slides from page 31/0, it was formed small groups from 4 to 5 students that discussed among them the chosen judicial decision (up to 2 cases per class each time) and rebuild the legal reasoning from the brief case model. The professors went around the groups and answered any punctual doubts. After 20 minutes of restrict debates (for each case, 10 minutes), the professor got back to the dialogue with the whole class and collective rebuild the brief case in order as well as the questions were presented inside handbook (attachment A of this document). I tried to oppose the different elements found for each mini-group and discuss the contents of the court decision. The aim was to present the process of reading and ratio of extraction to decide how a creative process. 

 

- ATTENTION IN THE CLASSROOM: it is recommended that the selection of the judgment or sentence is closely related to the discipline and the interest of the student in that issue. For economy or policy makers’ students, we recommend a prior analysis of the course and or training program, as well as the organ’s interest where the workshop will be developed. The more interest there is in the content of the judgment, more the student will strive to understand the underlying legal rationality. The participation and learning will be more effective. Controversial and current themes also tend to ensure participation and maintain interest in the workshop dynamics (ex. the case of homosexual marriage, used in attachment B slides). It is also suggested the inclusion of newspaper stories in the material to be previously distributed. This is a method workshop, which may be applied to several law issues and can be adapted to different classes.

Evaluation: 

- GRADE EVALUATION: Examples of exercises and cases are proposed in attachment A of this document. It was hoped that the students:

(i) Participated actively in classroom discussions, led by the professor from the brief case model (progressive identification of parts of the judicial decision):

 (ii) Identified the parts of the judicial decision or at least approached from this identification (using the brief case items: relevant issues, legal reasoning, etc.). The reinterpretation of a judicial decision, from the brief case, is itself a creative process, but the content of the decision itself brings legal limits to this reinterpretation;

 (iii) Had previously read the material (to be conferred by the professor through direct questions to students).

It would be possible to assign the grade to simple participation and/or adequate answer to the professor questions (quality of participation). Moreover, it would be possible to include a relative grade on the consolidation activity (suggestion below).

In FEA-USP, participation in case studies accounted for 20% of the final grade (effective and qualified participation in special group seminar and ongoing debate in the classroom during the Socratic dialogue). Model 2 (DJ / FD-USP and SAL / MJ), the simple participation (prior reading and discussion during training) was the only element of evaluation.

Observation: 

A recommended consolidation activity is the preparation by each student (or small group of students, depending on the size of the classroom) of a brief case to a judicial decision, provided and carefully selected by the professor.

The aim is to encourage students to reflect individually or in small groups about the judicial decision and extract the reasoning of a judgment or sentence independently, that will be later corrected by professor. See suggestions of cases in Attachment 1 of this document.

 

Activity Details

Name: 

How to read judicial decisions?

Institution: 

São Paulo University

Concentration area: 

  • Legal Sociology

Discipline : 

Law institutions for economists - FEA-USP Training for Legal Department XI August - FD-USP Course of public policy formulators - SAL-MJ Instituições de direito para economistas – FEA-USP Treinamento para o Departamento Jurídico XI de Agosto – FD-USP Curso de Formuladores de políticas públicas – SAL-MJ

Course: 

  • Undergraduate
  • Graduate course - stricto sensu level

Key words: 

  • Judicial decision
  • brief case
  • Judiciary Court
  • Judicial review of law or public policy
  • Analysis method

Number of students: 

From 20 to 120

Time of application: 

From 3 to 4 hours

Edition: 

Guilherme Forma Klafke

Copyright

Licença Creative Commons
This work is licensed under a Creative Commons Atribuição-NãoComercial-CompartilhaIgual 4.0 Internacional

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