legal argument and judicial decision making
alternative dispute resolution mechanisms
new evidence scholarship
The court’s management of the proceeding
Participating Institution(s) to which the Research Group belongs
Faculdade de Direito da Universidade Nova de Lisboa (FD/UNL)
Margarida Ramalho de Lima Rego
Mariana Machado França Gouveia Sande Nogueira
Jorge Miguel Morais Carvalho
José Manuel Lebre de Freitas
Rita Sofia Calçada Pires
Vera Cordeiro Pereira de Sousa Eiró
List of current PhD students
João Pedro Ramos de Almeida Pinto Ferreira
Patrícia Andrea Rodrigues André
Ricardo Lopes Dinis Pedro
Sérgio Carlos Brites Mascarenhas de Almeida
Tânia Carvalhais Pereira
List of other researchers of the Research Group
Maria Lúcia da Conceição Abrantes Amaral Pinto Correia
Structure of the research group
This group comprises a research team devoted to the study of legal argumentation and judicial decision making in a variety of displays and perspectives. In keeping with Cedis’s strategic project, we intend to study law in its relationship with society by promoting a multidisciplinary look integrating legal and non-legal approaches to research and opening up to methodologies of legal analysis developed by or in collaboration with other fields of knowledge, this group’s focus being set on the way cases are decided both in a court of law and in alternative dispute resolution mechanisms (ADR).
Given the different backgrounds and approaches to legal studies united in this group, its internal structure was designed so as to promote an organization that would best suit its proposed objectives and that was easily manageable in an integrated fashion. The group leader’s broad spectrum of research interests justified her appointment. She will be involved, albeit with different degrees of intensity, in every line of research developed by this group. Other members will be devoted to one, or in some cases two, of the ensuing three lines of research that differentiate themselves within this group.
One major line of research focuses on the analysis of the contents, structure, legibility and intelligibility of judicial decisions, judicial discourse as a source of legitimization of judicial decision making and of justice itself. It aims to put together the methodological contributions of legal theory and philosophy of law with empirical methods of data collection such as the conduction of a series of interviews of judges and other decision makers, with the purpose of identifying sources of tension or discrepancies between both statutory and scholarly named requirements for the justification of decisions and the actual practice of judicial decision making. Also within this line of research is this group’s intention to explore the theoretical issues raised by the performative side of law. It aims to address the next question of how an answer of law turns into an answer of fact, revisiting the theories on the fact-law divide and on speech acts in general, in line of this unit’s focus on the study of law in action.
Another major line of research focuses on the analysis of this country’s recent experience in ADR. Empirical research and data collection of all relevant and available ad hoc and institutionalized arbitration decisions shall occur. Their analysis shall be undertaken with the purpose of understanding the relevant features of arbitration in Portugal by answering different research questions: whether arbitrators are truly independent; whether or to what extent decisions are based in an unwritten solomonic rule that all parties should find some measure of success, as often alleged; whether and to what extent the justification of decisions differs from that of judicial courts; who issues written explanations of vote and on what grounds. Within this line of research there will be a special line of research dedicated to the analysis of this country’s recent experience in ADR in public procurement, public contracting and taxation, with the purpose of assessing the State’s willingness to move away from traditional courts and bring its disputes to private ADR. In addition, the role of regulatory and supervision authorities in ADR will be analyzed, with a view to understanding existing conflicts of interest and setting the boundaries of their intervention in this area.
An important focus of this group’s research will be on the more relevant changes implemented on our legal system by the new Portuguese Code of Civil Procedure, with an emphasis on the court’s role in the direction and management of the proceeding. Methodologically, this line will draw on the recent plethora of multidisciplinary developments collectively referred to as new evidence scholarship.
Objectives of the Research Group
This group’s research intends to build upon the experience of some key elements of this group in the large scale recently concluded multidisciplinary study, led by Mariana França Gouveia and financed by the Francisco Manuel dos Santos Foundation, on Economic Justice in Portugal (http://www.ffms.pt/estudo/24/a-justica-economica-em-portugal).
Following a similar strategy to that applied in such project, this group intends to publish the reports of the first stage raw data collection work, thereby providing a fresh ground of research for the wider academic community as well as for law makers and private institutions involved in dispute resolution in this country and beyond. And it aims to publish intermediate and final conclusions of their multidisciplinary analysis. The two objectives are complementary, both aiming to contribute in different ways to the accumulation of knowledge by promoting and disseminating the results of its research.
This group’s strategy for the dissemination of the results of its research takes into account another double objective: that of sharing our work with the international community of legal scholars and that of providing the various legal actors in our society with theoretical tools that facilitate the making of better decisions and, in sum, promote justice. In view of the latter objective, it is vital that the results of our research receive the widest possible national projection – that this group’s scientific results be disseminated locally so as to reach judges, attorneys and all other legal actors, and thereby have the best chance to cause a real impact in our society. This involves the local publication of books and papers in Portuguese, as well as the organization of conferences, workshops and other similar actions aimed at promoting public understanding of our most relevant results.
Simultaneously, it is also a key purpose of this group to promote the international projection of its results with the publication of scientific papers in international indexed journals with high impact factors. Looking back, this has possibly been the gravest collective failure of our national community of legal scholars. We have chosen to move sharply away from tradition and embrace the current favoured scientific indicators.
This objective is also linked with our planned contribution to the advanced training of researchers. NOVA Law created the first ever doctoral program in law by a Portuguese University. Its first edition opened in 1997. Whilst other institutions of higher education have since attempted to follow the same path, the constant search for innovation which is engraved in our genes, as well as our growing experience, still put us comfortably in the lead. However, up to the very recent past, advanced training of legal scholars, when existing at all, was mostly conducted at law faculties, no strong connections being made with existing R&D units. We also aim to change that. Some of our current doctoral students working in the focus areas of this group have already been integrated into it. Over the next two to three years we aim to re-focus the advanced training of legal scholars into Cedis. The same should happen, albeit with a lesser degree of intensity, with our master’s students. All of them shall be encouraged to integrate their individual research into the research projects to be developed within this group. And we shall provide them with the training for them to aim for the publication of their work in in international indexed journals.
Given our intention to integrate legal and non-legal approaches to research, making use of methodologies developed by or in collaboration with other fields of knowledge, some of our projects will benefit from the work of other R&D units within UNL. Currently a project exploring new evidence scholarship on the role of probability and statistics in judicial decision making is being prepared in collaboration with the input of members of ISEGI and NOVASBE.