Law of Business and Economic and Social Development
The Law of Business and Economic and Social Development line of research is characterized by the study of the normative field that rules the business and economy environment. The economic activities do not happen spontaneously, but are constituted and organized from a legal and institutional conformity according to the context of each country in relation to its international influences. Therefore, the manner that norms and legal institutions shape the economic relations internationally and in each country is central to understanding the flourishing of markets and of the business activity, to stimulate certain sectors, and to overcome the eventual economic inequality and obstacles to innovation among other possible goals.
The study of the legal structure of Brazilian business environment, on one hand, goes through the comprehension and evaluation of the private economic sphere, such as the organization and implementation of contractual relations, a company’s legal discipline, corporate governance and social responsibility of companies, democratization of capital market, the protection and delimitation of property and its social function and the mechanisms of damage repair and the transnational economic relations. On the other hand, this line of research is dedicated to study the ways the State acts upon the economy, such as its mechanisms of economic regulation, including sector regulation, the competition defense and the State business action, by means of state-owned enterprises and public banks. In both cases, compared research and research of the international regulatory environment are an important part of the production of professors and students of the program, promoting advances and central discoveries to Brazilian law, which is often in close dialog with the history and current affairs in Law and Development.
Learn about this line of research of Law of Business and Economic and Social Development of the Masters and Ph.D. of FGV Direito SP: São Paulo Law School with professors Carlos Ary Sundfeld, Mário Gomes Schapiro, Michelle Ratton Sanchez Badin e Viviane Müller Prado. Learn more
Research Projects
Regulatory Alternatives and Development Governance
This project aims at mapping and evaluating the different regulatory alternatives that conform the associated public policies to the promotion of development, having as hypothesis the fact that different regulatory tools present various comparative advantages to govern the numerous types of public policies.
Coordination: Professor Mario Schapiro
The Relation between the Developmental State and the Regulatory State
This project analyzes the relations established between the developmental State and the regulatory State. The developmental State is understood as an institutional configuration characteristic of countries in the South of the globe (developing nations) and that has presided the economic organization in these countries. As general features, it counts on discretionary decisions, public involvement in private accumulation and a public intervention committed to reaching economic results defined by bureaucracy. The regulatory State, in turn, is considered an institutional configuration originally established in the North of the globe (developed nations), but it has become widespread in the developing countries since 1990. Its main characteristics are the establishment of relations which are less susceptible to discretion and have more propensity for institutional formalization and also a role distribution between the normative functions, in charge of the State, and the functions of economic performance, in charge of individuals. In developed countries, the regulatory State was conceived as an alternative to the so-called entrepreneurial state. In southern countries, however, the literature has pointed to a reconciliation between developmental and regulatory arrangements. Based on the premise of this reconciliation, this project intends to analyze its consequences in financial regulation, especially in the performance of public banks.
Coordination: Professor Mario Schapiro
Legal Institutions of Capitalism in an Economic and Comparative Perspective
This project investigates the origins and economic consequences of legal institutions central to modern capitalism, such as the contract and the limited company, as well as their evolution over time, in order to better understand the relationship between the legal regulation and the organization of economic and social systems. The investigation follows two main lines: (i) the degree of diversity and uniformity in the legal discipline of different countries is examined, as well as the determining factors in its formatting and (ii) the effects of the different arrangements for economic and social development are evaluated. The project dialogues with the literature on law and economics, law and development, comparative law and corporate governance, as well as with Brazilian dogmatic studies in the corporate and contractual field. It is intended to contribute to both Brazilian and international literature by studying the peculiarities of institutional arrangements prevalent in developing countries in general and in Brazil in particular — peculiarities that are usually neglected not only abroad, but also in national legal production, in the absence of a comparative north. Furthermore, it seeks to identify explanatory keys and determining factors for the evolution of law that, although important, have escaped the radar of scholars from the Anglo-Saxon world. From a methodological point of view, the interdisciplinary approach is privileged, with the use of comparative law and law and economics methods. The empirical data to be examined include historical sources, court decisions, contractual practices, legislation and economic and institutional indicators, both Brazilian and international.
For the faculty's studies in this project, see her page on the SSRN website.
Coordination: Professor Mariana Pargendler
Legal Heterodoxy in the Global South
This project investigates how the institutional context of developing countries has changed basic elements of the legal dogmatic of institutions that are central to the modern economy, such as contract law and corporate law, among other fields. Specifically, it examines to what extent (i) the greater inequality observed in developing countries and (ii) how deficiencies in state capacity alter the structure and functioning of fundamental legal institutions, a phenomenon that has been neglected by the law and development literature.
Coordination: Professor Mariana Pargendler
Current Law and Economy
This project investigates the current contours of the academic movement of Law and Economics in the world and in Brazil. The historical evolution and current transformation of the Law and Economics literature is examined, covering what we have chosen to call “the rise and fall of the modularity approach (compartmentalization)” in Law and Economics. The project also seeks to concretely analyze the uses of Law and Economics in Brazilian courts, taking into account the legal (including constitutional), economic and social characteristics of the country.
Coordination: Professor Mariana Pargendler
Economic and Legal Fundamentals of the Theory of the Firm and Legal Personality
The project seeks to advance the examination of the legal contours and economic foundations of the theory of the firm and legal personality. There are several economic theories of the firm, but these have relevant tensions between them. On the other hand, the economic analysis of legal personality exclusively approaches a legal attribute, the separation of assets, neglecting other legal aspects and their economic relevance. Here, the aim is to investigate the important function of regulatory separation provided by personification, as well as the economic function of regulatory disregard in relation to controlling shareholders.
Coordination: Professor Mariana Pargendler
Institutions and Enforcement
The aim of this project is to study legal and market institutions. It seeks to produce data and analysis on the effectiveness of legal rules related to Business Law. The studies go through the institutional design, regulation, monitoring and sanctioning activities of the competent institutions - alone or in a coordinated manner. It also seeks to understand the use of sanctioning legal instruments and compensation or indemnification of losses. It is intended to assess the effectiveness of the relevant normative body for economic and social development, as well as to understand its shortcomings.
Coordination: Professor Viviane Muller Prado
Capital Market and Development Law
What is the role of Law in the development of the capital market and in the performance of its function of financing economic agents? Based on this question, this project intends to reflect on the influence of regulation on the development of the capital market and on the improvement of the Brazilian regulatory model. The pretension of having a strong capital market capable of channeling private savings directly to the financing of national companies has been in the history of Brazilian economic policies since the 1960s. The use of Law as an instrument of construction of this market originated the necessary regulatory marks to the development of our financial system and the capital market, but with a role that deserves to be better understood and evaluated, in light of the changes observed in agents, instruments and services created in recent decades.
Coordination: Professor Viviane Muller Prado
Business and Development Law
This project is destined to study the normative field that rules the business environment. The circulation and distribution of wealth occur in a sphere largely regulated by law, in which legal norms and institutions contribute to or discourage economic and social development, as well as impact the way in which the wealth produced in a given society is appropriated by different groups. The research carried out in this project seeks to contribute to the understanding of legal mechanisms related to sustainable development.
Coordination: Professor Viviane Muller Prado
Public Law and Development: Governance, Control and Economic Administration
The project discusses the new legal conformity of the actions of the public administration and the particularities that interact with it. The environment in which these interactions take place is becoming more complex and it is necessary to understand their reasons, effects and legal challenges. It is of special interest, on the one hand, to discuss the governance solutions related to public management, as well as the structures, strategies and limits of the performance of public controllers, especially the Judiciary and account controllers, whose capacity to impact has been growing, with potential risks for the coordination of public actions and the legal security of public and private agents. On the other hand, matters of the competences for action and intervention of the State in the economy and its normative peculiarities are of interest, as well as its instruments (e.g., administrative regulation, public-private infrastructure contracts and contracting processes) and their limits. The main research materials are norms (laws, regulations, contracts, etc.) and legal decisions that are linked to it in the administrative, judicial and controlling spheres. The general objective is to contribute to the improvement of governance, control and economic administration.
Coordination: Professor Carlos Ari Sundfeld
Legal Argumentation in Higher Courts
The project aims to investigate whether and to what extent the constitutional requirement to substantiate judicial decisions can function as a mechanism for democratic control of the exercise of power by the Judiciary. It starts from the theoretical debate on argumentation and investigates the relationship between argumentative reasoning and the legitimacy of decisions. For that, judicial decisions of the higher courts are analyzed.
Coordination: Professor Flávia Püschel
Rewriting Decisions from the Feminist Perspective
The project is inspired by projects of rewriting feminist judgements that have already been developed in Canada, Australia, United Kingdom and Ireland. It aims to identify court decisions from fields traditionally related to "the women's issue" in law, such as domestic violence, but also fields normally considered gender-neutral, such as contracts and civil liability, to carry out a systematic analysis of their arguments and, in the future, to rewrite such decisions from a perspective that puts women at the center and does so from exclusively feminist findings and theories. It is an exercise in (re)imagining the law and exploring its potential when false neutrality is openly removed and, with it, also the biases (conscious or not) that make the law an instrument of subordination of women. The objective is not only deconstructive, by criticizing the legal and jurisprudential framework, but also reconstructive, by exploring new conceptual possibilities and contributing to the construction of fields of legal dogmatic that take into account the experiences of women living the law.
Coordination: Professor Flávia Püschel
Law and Economic Relations in Brazil: Empirical Evidence in Contrast
This project aims to understand the role of law in increasing economic relations between Brazil and other partner countries in which Brazil has increased its trade and investment flow in recent years. Ongoing research looks specifically at Angola and China as economic partners. For this purpose, different regulatory levels are considered, from international agreements, to national rules and legal instruments of a contractual nature, especially financing.
This project has 3 axes:
1) The use of qualitative research techniques in the field of Law, with the use of empirical techniques, including interviews and discourse analysis in data analysis software (Atlas.IT).
2) The study of specific cases that cross the areas of trade, investment and financing, especially large infrastructure construction and public services in the energy area.
3) The dialog with the literature on law and development for concepts and categories of International Economic Law, based on the example of economic relations involving countries from the Global South in the international economic system and non-traditional instruments of modern International Law.
Coordination: Professor Michelle Sanchez Badin in collaboration with professor Fábio Morosini (UFRGS)
International Law and its Criticism: (Re)Contextualization of Brazil
This project aims to review critically-biased literature on international law, stimulate and promote dialog with Brazilian production in the field, and allow reinterpretations of constitutive elements of the theory and dogmatic of international law in Brazil. Also in this space, using empirical tools, an attempt is made to map the profile of the Brazilian community that articulates and influences International Law.
Coordination: Professor Michelle Sanchez Badin in interinstitutional partnership with the professors Arthur Capella (IRI/USP) and Fabio Morosini (UFRGS)
The Current Economic Analysis of Law and Empirical Legal Studies
This project investigates legal norms and institutions capable of promoting or hindering economic and social development through their effects on individual behavior, using, for this, the application of the Economic Analysis of Law and the development of empirical legal studies. It starts from a model of individual behavior that considers not only material incentives but also individual preferences that encompass phenomena observed and repeatedly verified empirically, such as individual aversion to losses, guilt, inequality and violations of moral and social norms. The legal norm is able to change material incentives, as studied in the Economic Analysis of Law for decades, but it also interacts with such preferences in a way that the practical and real result can often be more complex or even contrary to that intended or to that predicted by strictly rational choice models. The project is interdisciplinary and, although it has a clear focus on Economic Analysis of Law, it dialogues with Psychology, Sociology and Cognitive Sciences. It seeks to identify determining factors of individual actions and behaviors regulated by law and to test their effects empirically, through studies, experiments and surveys carried out in the laboratory, online or in the field, with real legal practitioners such as judges, lawyers, witnesses or arbitrators. With this, the ultimate goal is to provide contributions to the understanding and prediction of how people really respond to legal norms with different content, as well as using them to design legal reforms and public policies that are more apt to achieve their goals, to foster economic and social development, and to maximize social well-being.
Coordination: Professor Sergio Mittlander
Corruption, Democracy and Development
This project develops socio-legal and interdisciplinary research on corruption and its control policies, exploring its various interfaces with economic and social development. Despite its centrality in contemporary debate, corruption remains a persistent and difficult problem to resolve around the world, sometimes leading to disenchantment with the results of reforms and actions taken to control it. Researchers and policy makers around the world are urged to “reform reforms”. It is therefore necessary to re-examine the relationship between corruption and development as a way to relaunch diagnoses and solutions, based on the expansion of its object, its form of regulation and the actors involved. First, it seeks to look beyond the universe of bribes, looking at phenomena such as nepotism, fraud, conflict of interest, undue influence, among others. Likewise, in addition to punishment, policies for prevention, participation, transparency and monitoring are examined, that is, for the legal-institutional complex that supports corruption control policies in the domestic and transnational spheres. Finally, the role of legal entities and civil society as recipients of the regulation of corruption and as influential voices in its formation is highlighted.
Coordination: Professor Raquel Pimenta
Institutions of Democratic State of Law and Political and Social Development
This line of research investigates the functioning of the institutions of the Democratic State of Law responsible for the production, interpretation and application of Law, as configured in the constitutional and public international spheres. The study of the justice system, public policies and international institutions, with an emphasis on reflection on institutional designs and reforms, human and social rights, individual capacities, democracy and State control, seeks to favor the understanding of public legal mechanisms that enable or constrain the realization of the Democratic Rule of Law.
Included here are, in particular, issues surrounding, for example, constitutional, administrative, criminal law in their relations with the functioning of the justice system, human rights, social policies, public policies, enforcement of rights, State control, public-private relations, among others. Some of the themes that currently mobilize innovation in the field of Law and Development are included in this line: Anti-discrimination Law, Law and Gender, Legal Conformation of Sustainable Development, Law and Decoloniality, among others.
Find out more about the line of research of Institutions of Democratic State of Law and Political and Social Development of the Academic Masters and Ph.D. of FGV Direito SP: São Paulo Law School with professors Flávia Püschel, Luciana Gross Cunha e Maíra Rocha Machado. Learn more
Research Projects
State Crisis and Democracy Challenges in Brazil
This project aims to examine the changes in legitimation discourses, in the institutional designs and practices and political warranties within the contemporary transformations in the State, in its forms of production and subjectivity. In a specific way, it seeks to analyze by what means these transformations manifest in Brazil and how they could affect the functioning of democracy and public policies.
Coordination: Professor José Garcez Ghirardi
Constitutional Jurisdiction, Fundamental Rights and Institutional Design
This project analyzes the role of the STF in the exercise of constitutional control, its relationship with other political powers, identifies and verifies the interpretation models used by its ministers in their decisions and carries out a comparative study of Constitutional Courts; studies the interpretation and implementation of fundamental rights in national and foreign law from the procedural perspective of constitutional justice and specific issues of general theory of law, specifically with regard to methodological options on the interpretation of constitutional law and theory problems of the norm; studies the design and impact of inequality on the functioning of the institutions of the Democratic State of Law.
Coordination: Professor Oscar Vilhena in collaboration with professors Dimitri Dimoulis and Luciana Gross Cunha
Brazilian Justice System: Institutional Law and Law Operators
The project resumes the theme of access to justice. As it is well known, the Brazilian justice system, as conceived by the Federal Constitution of 1988, consisted of a set of institutions whose main objective would be to expand access to justice. The specialized literature has shown, however, that its daily functioning is rather an obstacle to this end. Whether due to the lack of institutionalization of the model, whether due to political, economic and social variables, or corporate issues, the Brazilian justice system continues to be expensive, slow and inefficient with regard to the guiding principles of the Democratic State of Law. Assuming that institutions matter and that, in the case of Law, the functioning of the justice system is an essential instrument for development, the project aims to study the institutions of the justice system and their functioning. In this context, investigating the operators of law becomes essential to understanding how institutions behave. Thus, the project focuses on the composition of careers in the institutions of the justice system and the role and influences that these characters have.
Coordination: Professor Luciana Gross Cunha
Professional Networks and Bureaucratic Discretion in the STF
This project is inserted in the autonomy and discretion of the state bureaucracy field of studies, having as its object the Federal Supreme Court (STF), with the objectives of: (i) mapping the profile of its bureaucratic body; (ii) understanding how it configures and operates; and (iii) identifying the relational flows in the professional networks to which these bureaucrats belong. We are interested in looking at the composition of the cabinets of ministers, including advisory judges and law graduates who occupy positions in commission, verifying the existence, modus operandi, and influence of informal networks that interfere in the choice of these professionals. The research will shed light on the role of this body of advisors and auxiliaries, which can act as a mediator, coordinator or gatekeeper between different interest groups and the STF ministers, thus contributing to the public debate on rules of transparency and responsiveness of state bureaucracy.
Coordination: Professor Luciana Gross Cunha
Courts and Health Technology Assessment in Comparative Perspective
This project analyzes the relationship between the judiciary and Health Technology Assessment (HTA) systems that inform health systems about the decisions regarding the incorporation of new technologies. First, the possibility of the judicialization of health generating incentives for the creation of HTA systems will be analyzed. Four cases will be studied - Brazil, Colombia, Costa Rica and England - where there is evidence that lawsuits with requests for the provision of medical treatments help explain the creation of HTA systems. It then looks at the different approaches that courts have when judging decisions on access to treatment and how each approach impacts health systems and HTA differently. Courts may (i) demand quality, consistency and procedural fairness in HTA (England), (ii) restrict the scope of HTA use, for example, excluding economic criteria in resource allocation (Colombia), (iii) guarantee access for individuals to treatments not incorporated by recommendation of HTA, (iv) reassess technologies with the support of specialists acting under the supervision of the Judiciary. This research is particularly important in a context of rising health care costs and the increasing involvement of the judiciary in decisions about the allocation of health resources.
Coordination: Professor Daniel Wang
STF and Covid
With the help of computing and artificial intelligence, this project seeks to understand the role of the Supreme Court (STF) during the Covid 19 pandemic in all areas of law. The main questions that this project will look to answer are: (i) What issues have come to the STF?; (ii) What is the context in which cases are taken to the STF?; (iii) How has the STF decided?; (iv) Is there a jurisprudence of crisis or a continuity in the jurisprudence of the STF?; and (v) Is the perception of the crisis and the role of the STF consistent across different areas? This project is currently subdivided into a few axes: (1) penal; (2) responses to the pandemic, including social distancing and vaccination; (3) data transparency and confidentiality; (4) assistance benefits; (5) budgetary flexibility; and (6) review of contracts.
Coordination: Professor Daniel Wang
Judicialization and Supplementary Health
Brazil has a supplementary health system that has 47 million users, which represents more than 20% of the population. The sector's healthcare expenditure in 2019 totaled R$179 billion and was significantly higher than that of the Ministry of Health in the same year. It is a sector that has great challenges. Many of these challenges are regulatory in nature, as it is a sector that is highly regulated to ensure consumer protection and timely adequate provision of services. Another challenge is the growing mismatch between user expectations and the system's ability to meet them. These challenges often lead to conflicts between operators and users that end up being taken to a solution by the Judiciary, generating the so-called judicialization of health. In 2020 alone, 46 thousand new actions were distributed in the common courts or in special courts. According to existing data, the judicialization against the supplementary health sector is much greater than the judicialization against the Unified Health System (SUS). On the other hand, academic production on the phenomenon of judicialization against the supplementary health sector is very low if compared to the vast production on lawsuits against the SUS. The project, through big data and artificial intelligence, seeks to present a broader and more complete picture of the judicialization against the supplementary system.
Coordination: Professor Daniel Wang
Law Research, with Law and to Law*
This project builds on the results of a previous research, “Teaching Methodology and Empirical Research in Law”, with the aim of investigating how different methodological strategies challenge the prescriptive and normative dimensions of Law. In addition to advancing the interest and relevance of the repertoire of methods and techniques available in national and international literature, we seek to investigate how the results of research conducted from case studies, interviews, different types of document systematization can both contribute to and challenge activities that are fundamental to the legal world, not only at the jurisdictional level but also at the level of legislative reforms.
Coordination: Professor Maíra Rocha Machado
*Project available in 2022
Responsibility, punishment and performance of the justice system*
This project focuses on the normative arrangements, justification discourses and decision-making practices of what is usually called "penal execution" in Brazil.
Coordination: Professor Maíra Rocha Machado
*Project available in 2022
Civil Society, Public Sphere and Law: “Juridification” of Social Demands and Legal Ambivalences
This project aims to observe repertoires of action, legal strategies and frameworks used in the mobilization of civil society actors in the struggle for rights. On the other hand, it intends to observe how State institutions respond to these actions, how they are institutionally organized to dialogue with the public sphere, how permeable they are to the participation and demands of civil society and, in some cases, how they articulate repressive responses. One of the issues dear to this research is the role of criminal law and the criminal justice system in social struggles, which appears, from the empirical material, in a very ambivalent way.
Coordination: Professor Marta Machado
The Role of Law and Institutions in the Democracy Deterioration Process
This project seeks to reflect upon the role of law and institutions in the democracy deterioration process. Several countries in the world have been going through different processes of deterioration of democracy. Unlike previous waves of “autocratization”, the current damage to liberal democracies is occurring in subtle and incremental ways, within electoral agendas and often hidden behind the facade of institutional normality. Autocratic legalism (Sheppele, 2018), abusive constitutionalism (Landau, 2013) and constitutional capture (Müller, 2014) are some of the concepts that try to understand the dismantling of constitutional democracies through the use of legal mechanisms. Law plays an important role in this process, on the one hand sustaining it and, on the other, serving as a means of resistance. Understanding the dynamics between formal and informal norms, as well as interpretive disputes, are central to this project.
Coordination: Professor Marta Machado
"Fighting" Corruption through the Criminal Procedure
The project focuses on “Operação Lava-Jato”, one of the most important cases in the history of the fight against corruption in Brazil and which involved the use of legal provisions and old practices and innovations in the system, such as agreements with those who turned state’s evidence. These innovations certainly played an important role in the case, as several scholars have argued. Much less debated, but equally relevant, are the new interpretations of provisions of criminal law, criminal procedure and the Constitution by Brazilian judges and courts. Focusing on the new jurisprudential interpretations of Lava-Jato, this project seeks to discuss the advances, but also the potential risks of this strategy to constitutional principles of the Democratic State of Law.
Coordination: Professor Marta Machado
Law, Development and Postcolonial World
This project aims to better understand the relationship between law, politics, religion and society in the development processes of countries and regions previously or currently subjected to colonization or occupation. Special interest is turned to processes in the Arab world, in the Muslim world, which involves a good part of Africa and Asia. Topics related to: 1) The colonial heritage in terms of institutions, politics and law, and its effects on development processes; 2) The result of the combination of local, previous, religious or traditional Law, with the Law brought about by colonization and the effects on the rule of law; 3) The normative and institutional transplant processes; 4) The relationship between international, political, legal and economic institutions and national development processes in postcolonial societies; 5) The resilience, in various forms, of processes of domination or hegemony that replaced traditional colonialism and its relationship to development.
Coordination: Professor Salem Nasser
Global Law (as Globalization Law and as Law in Globalization) and Development
This project aims to understand the multiplicity of normative, legal and non-legal phenomena that regulate international relations, as well as local or national relations in times of globalization; and equally understand the relationships between these multiple normative phenomena. The topics considered will be related to: 1) Legal pluralism, pluralism of legal orders, legal regimes, normative sets, and their implications for development and with the rule of law (in the broad sense that includes legal certainty, legitimacy, justice, accountability ...); 2) The fragmentation of International Law into specialized regimes and its relationship to development and the rule of law; 3) Specific studies related to one or some of the normative phenomena of what is being called global law, or about the literature that analyzes, describes or criticizes them: global administrative law, transnational private regulation; soft law; global governance etc. 4) Studies on thematic, global or transnational, legal, state or private regimes; 5) Globalization Law, as the Law that constitutes and organizes what could be called the globalization process; 6) Law in globalization, as the implications of the globalization process on Law (whatever it is, national, international, local...) and on its operation.
Coordination: Professor Salem Nasser
Rule of Law, Crisis of Democracy and Autocratic Legalism
Around the world, democracy is in retreat. The latest reports by V-Dem and Freedom House document increases in autocratic practices and attacks on fundamental freedoms. Unlike previous waves of “autocratization”, the current damage to liberal democracies is occurring in subtle and incremental ways, within electoral agendas and often hidden behind the facade of institutional normality. Autocratic legalism (Sheppele, 2018), abusive constitutionalism (Landau, 2013) and constitutional capture (Müller, 2014) are some of the concepts that try to understand the dismantling of constitutional democracies through the use of legal mechanisms. The project seeks to analyze, from a socio-juridical approach, how law and institutions enable and resist autocratic projects, in Brazil and in a comparative perspective (with a special focus on South Africa and India).
Coordination: Professors Oscar Vilhena, Marta Machado, José Garcez Ghirardi, Michelle Sanchez Badin e Raquel Pimenta
