scholarly journals Dispersão de Fundamentos no Supremo Tribunal Federal / Scattered Arguments in Federal Supreme Court

2016 ◽  
Author(s):  
Fábio Carvalho Leite ◽  
Marcelo Santini Brando
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Judicial Review ◽  
Decision Making Process ◽  
Simple Majority ◽  
Cognitive Sciences ◽  
Starting Point ◽  
De Se ◽  
Decision Making Rule ◽  
Federal Supreme

Resumo: O trabalho analisa, em duas partes, o fenômeno conhecido por dispersão de fundamentos, prática decisória que por vezes marca o Supremo Tribunal Federal (STF) no controle de constitucionalidade. A primeira parte é descritiva e sugere que a dispersão de fundamentos é fenômeno que ocorre pela presença necessária da regra de maioria decisória simples (RMDS) associada à presença contingente do princípio da causa de pedir aberta e da indeterminação relativa do texto constitucional. A segunda parte é normativa e analisa criticamente os problemas resultantes da adoção da RMDS. Partindo-se do tradicional debate sobre a legitimidade do controle de constitucionalidade, porém não se alinhando a um modelo normativo em particular, o trabalho põe em xeque a proximidade do processo decisório do STF com a ideia de “resposta certa”, aborda a dificuldade de se formar jurisprudência capaz de uniformizar o tratamento de casos a respeito de um assunto e questiona a desconsideração da presunção de constitucionalidade nos casos difíceis do direito em que se verifiquem desacordos morais razoáveis. Por fim, a confiabilidade de intuições morais invocadas pelos ministros no processo decisório do STF é questionada a partir das ciências cognitivas e da psicologia moral.Palavras-chave: Supremo Tribunal Federal; Controle de constitucionalidade; Processo decisório; Dispersão de fundamentos. Abstract: The work analyzes, in two parts, a phenomenon known as argument scatter, a decision-making practice that sometimes characterizes judicial review in the Brazilian Supreme Court (STF). The first part is descriptive, and suggests that argument scatter occurs in the necessary presence of a simple majority decision-making rule (SMDMR), associated to the contingent presence of the open cause of action principle and of the relative indeterminacy of constitutional text. The second part is normative, and critically analyzes the problems that arise from the SMDMR. Taking the traditional debate about the legitimacy of judicial review as a starting point, while avoiding commitment to any particular normative model, this work calls into question the proximity of the Supreme Court’s decision-making process with the idea of a "right answer", addresses the difficulty of generating clear precedents, and challenges the disregard of the presumption of constitutionality in hard cases in the law where reasonable moral disagreements emerge. Finally, on the basis of research in the cognitive sciences and moral psychology, it challenges the reliability of the moral intuitions Supreme Court Justices invoke in the decision-making process.Keywords: Brazilian Federal Supreme Court; Judicial review; Decision-making process; Scattered arguments.

Sew or purchase? Home sewer consumer decision process

2018 ◽  
Vol 22 (2) ◽  
pp. 176-188
Author(s):  
Addie Martindale ◽  
Ellen McKinney
Keyword(s):  
Decision Making ◽  
Geographic Area ◽  
Decision Making Process ◽  
Consumer Decision Making ◽  
Consumer Decision ◽  
Content Type ◽  
Female Consumers ◽  
The North ◽  
Starting Point ◽  
Consumer Dissatisfaction

Purpose The purpose of this paper is to explore garment consumption decision processes of female consumers when they have the option to sew or purchase their clothing. Design/methodology/approach This research study presents a segment of the findings from a larger qualitative grounded theory study on women who choose to sew clothing for themselves (Martindale, 2017). This research analyzed the interview data pertaining to the unique sew or purchase decision-making process in which these consumers undertake as well as the related control over ready-to-wear consumption that sewing provides them. Findings The ability to sew resulted in a unique consumer decision-making process in regard to the clothing purchases due to the control it provided them over their ready-to-wear consumption. The women developed factors that they used to make the decision to sew or purchase. Over all the ability to sew provided them the option to sew or purchase clothing, allowing the women more control over their clothing selection specifically in regard to the garments body fit. Research limitations/implications This study was limited to English-speaking women living in the North America. The qualitative data collected are specific to this sample which cannot be generalized to all female home sewers. Research involving a larger population of women from a larger geographic area is needed. Practical implications The newly developed sew or purchase model provides an understanding of the control that having the option to sew or purchase provides female consumers. The findings offer apparel industry professionals a new perspective on ready-to-wear consumer dissatisfaction. The investment that is made when a garment is sewn instead of purchased has the potential to increase wardrobe sustainability as the consumer experiences more attachment to the clothing they have made. The model serves a starting point for further exploration into other craft-related consumer decision behaviors. Originality/value Purchasing decisions of this nature have yet to be considered in published research. Exploring these women’s decisions who operate outside of typical consumer culture and developing a model for this consumer behavior explains a phenomenon not yet addressed by existing consumer consumption research.

13. The nature of judicial review

2020 ◽  
pp. 277-308
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision ◽  
Public Bodies

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is outlined.

scholarly journals Internalizing Contestation in Process-Based Judicial Review

2019 ◽  
Vol 20 (8) ◽  
pp. 1167-1181
Author(s):  
Laura M. Henderson
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Theoretical Basis ◽  
Decision Making Process ◽  
Constitutional Theory ◽  
Judicial Decision ◽  
Constituent Power ◽  
Judicial Decision Making ◽  
European Stability Mechanism

AbstractThe cases challenging the European Stability Mechanism in Eurozone creditor states show the concern courts have with protecting and promoting democratic contestation. This Article shows how John Hart Ely’s theory of process-based review provides the theoretical basis for understanding how attention to democratic contestation contributes to the legitimacy of courts reviewing legislation against constitutional norms. By focusing on promoting democratic procedures, Ely argues that courts can avoid substantive decisions that are best left to the legislature. Yet, as my discussion of the constitutional theory of constituent and constituted powers shows, no form of constituted power can avoid some exercise of constituent power. In other words, even a process-based approach cannot avoid substantive judgments. The legitimacy of these decisions depends on the availability of avenues for contestation in the judicial decision-making process itself.

scholarly journals The judgment of crimes against humanity in Brazil: Analysis through the critical criminological lens of lola aniyar

2021 ◽  
pp. 47135-47145
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Supreme Court ◽  
Ad Hoc ◽  
Lewis Carroll ◽  
Crimes Against Humanity ◽  
Military Dictatorship ◽  
Criminal Control ◽  
Decision Making Rule

In this article we discuss two recent Brazilian Supreme Court judgments about crimes committed during the civil-military dictatorship: Allegation of Disobedience of Fundamental Precept suit n. 153 (constitutionality of the 1979 amnesty law), and Extradition suit n. 1362, that discussed the extradition of an Argentine citizen who was convicted of committing crimes against humanity during the Argentine dictatorship). We analyze the role of the Brazilian Supreme Court in the (re) construction of the “criminal problem” and “criminal control” in relation to crimes against humanity perpetrated during the periods of the Argentine (1978-1983) and Brazilian (1964-1985) dictatorship. We take Lola Aniyar de Castro Thought’s, seeking some inspiration, for whom the criminology of the 21st Century is the “criminology of human rights”, and criminal control would be the thermometer of human rights. In the last part of this article, we discussed what seems to have been “the triumph of Lewis Carroll”, in the metaphor of reversing meanings: when protecting human rights is not to protect human rights, by creating an ad hoc decision-making rule from which “remembering is to forget”, and “forgetting is to remember”, provided that, from the peculiar Rule n. 42, the investigation and accountability for crimes against humanity are not allowed.

scholarly journals The Unmeritorious ‘Legality’/‘Merits’ Distinction in Singapore Administrative Law

2021 ◽  
pp. 1-32
Author(s):  
Benjamin Joshua Ong
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
General Principle ◽  
Case Law ◽  
Administrative Law ◽  
Decision Making Process ◽  
Rough Approximation ◽  
Executive Decision Making ◽  
The Law

Abstract The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This article argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive's by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all of administrative law. However, the Distinction is too vague for this purpose (as seen from Singapore cases which have interpreted the distinction inconsistently). It is conceptually problematic, incompatible with the practicalities of judicial review (particularly substantive review as recognised in Singapore law), and has occasionally been paid lip service but not followed in substance. The Distinction cannot form a coherent principle to guide the courts and ought to be replaced by a more nuanced application of constitutional principles relevant to determining the appropriate scope of review. Whatever these principles may be, and however they are to be balanced, the Distinction can be but an over-inclusive rough approximation of them which hampers the development of the law.

scholarly journals A Critical Analysis of Appointment of Federal Supreme Court Judges in United States of America

2016 ◽  
Vol 5 (2) ◽  
pp. 23-36
Author(s):  
Rangin Pallav Tripathy
Keyword(s):  
United States ◽  
Supreme Court ◽  
United States Of America ◽  
Critical Analysis ◽  
Decision Making Process ◽  
Judicial Appointments ◽  
Research Article ◽  
Theoretical Structure ◽  
The World ◽  
Federal Supreme

This research article focuses on a critical analysis of the process by which federal Supreme Court judges in United States of America are appointed. As one of the oldest democracies in the world, the process of judicial appointment in USA has been shaped by centuries of history. The article explores the unique process of judicial appointments in federal Supreme Court of United States where the President and the Senate share the power conjointly, but independently of each other. It looks into the factors which have assumed relevance in the decision making process of both the President and the Senate. The author argues that though the theoretical structure for the appointment of judges in USA is sound, the greatest achievement has been the processes which have developed beyond a direct mandate of law. The conventional practices associated with the process of judicial appointment have brought in a degree of transparency which is elusive in many other countries. The author acknowledges the obvious political flavor in the entire process, but argues that the degree of transparency provides a substantial benefit.

13. The nature of judicial review

2018 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is considered.

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