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Jurimetrics and Its Application in the Courts of Accounts - Analysis of a Study on the Court of Union Accounts (TCU).md

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Jurimetrics and its application in the courts of accounts: analysis of a study on the Court of

Union Accounts (TCU)

Through the analysis of the application of jurimetry – use of quantitative methods

in law – in the courts of accounts, the aim is to demonstrate that the use of this

methodology can lead the courts of accounts to improve their performance. The

technique used in the work was the bibliographic research. The concept of jurimetry,

its characteristics and advantages are presented, as well as successful cases of its

application in Brazil. The bibliographic research resulted in a single study, which

applies statistical techniques to data from the jurisprudence of the Federal Court of

Accounts (TCU). From the analysis of the result, it is concluded that the application

of jurimetry in the courts of accounts will probably lead to an improvement in its

performance, which demonstrates that the initial hypothesis is true. It is

recommended that the audit courts start using and applying jurimetrics.

Keywords: Jurimetry. Courts of Accounts. Quantitative methods. Federal Audit Court. TCU.

46 Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./Jun. 2020.

SUMMARY

Juliana Cristina Luvizotto1

Jurimetrics and its application on the courts of accounts: analysis

Gilson Piqueras Garcia2

of one study of the Federal Court of Accounts (TCU)

1

Specialist in Administration from Fundação Getúlio Vargas (FGV). Engineer, External Control Auditor Civil Engineer and Technical Coordinator of the School of Management and Accounts of the Court of Auditors of the Municipality of São Paulo. E-mail: [email protected]

PhD and Master in Administrative Law from the Faculty of Law of the University of São Paulo (USP). External Control Advisor at the Court of Auditors of the Municipality of São Paulo. Email: juliana.luvizotto@

2 PhD in Science and Technology from the São Paulo State University (Unesp). Master in Engineering. tcm.sp.gov.br

Machine Translated by Google MAGAZINE

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./June. 2020.

Jurimetrics is the use of quantitative methods in law. The main purpose of the

study is to demonstrate that the use of Jurimetrics can lead the Courts of Accounts

to improve their performance. The technique used in the work was bibliographic

research. The concept of Jurimetrics is presented, as well as its characteristics

and advantages. The following are cases of successful application of Jurimetrics

in Brazil. The bibliographic research resulted in a single study, which applies

statistical techniques to data from TCU jurisprudence. From the analysis of the

result it is concluded that the application of Jurimetrics by the Courts of Accounts

will probably lead to an improvement in their performance, which shows that the

initial hypothesis is true. It concludes by recommending that the Courts of

Accounts apply the Jurimetrics.

The object of this work is the application of Jurimetrics on the Courts of Accounts.

Received: 04-12-2019

Approved: 20-01-2020

Keywords: Jurimetrics. Courts of Accounts. Quantitative Methods. Federal Court of Accounts. TCU.

ABSTRACT

The growing interest of legal professionals and scholars in the

development of empirical work, as demonstrated by the Journal of Empirical

Studies in Law (REED); the recent creation of lines of university research

focused on the use of this methodology, such as the Applied Legal Research

Center of the Getúlio Vargas Foundation in São Paulo (FGV Direito SP); or, still,

the carrying out of researches by the judiciary courts for the production of data

on their own performance have indicated that, currently, there is a transition to

the modification of the scientific paradigm that has dominated the western legal

tradition since Roman times. Since the aforementioned Roman times, it was

common for the opinions of famous jurists to enjoy authority and mandatory

force of law, which culminates, even today, in a professional strategy of using

what is conventionally called “arguments of authority” (OLIVEIRA , 2004, p. 7). O

47

  1. INTRODUCTION

Machine Translated by Google It is possible to assure that this trend follows a phenomenon observable

everywhere: not only in the United States, where it originated under the influence

of the development of legal realism studies, but also in continental Europe, where

it spread. This is because not only the professional activity of the legal area has

required the performance of pragmatic studies for the application of laws, but also

the academic production in law has increasingly used the method prevalent in

other natural and social sciences, giving greater emphasis to the formulation of

falsifiable theories and the development of empirical and experimental studies able

to test them (PARGENDLER; SALAMA, 2013, p. 97).

More specifically, the object of this study is the application of jurimetry in the

courts of accounts. The hypothesis is that its use improves the performance of

these bodies and contributes to legal certainty and accountability.

The same can be said about the technique for carrying out legal research, which

basically consists of a bibliographical review of classic works, with some illustrative

citation or reinforcement of jurisprudence. However, today, professional and

academic legal activity reflects the aspiration to examine the consequences of

applying the law to the concrete case, the impact of judicial decisions or other

judgmental instances in the context of society.

In the context of the aforementioned empirical analyzes that advance in the

legal area, the object of the present work is presented, jurimetry, which, in short,

can be defined as the application of quantitative methods to law. It is observed that

economics, applied social science, like law, has experienced a huge advance with

the introduction of quantitative methods (econometrics) and, therefore, it is

understood that law can also experience a great advance with the use of jurimetry.

The application of jurimetry in the courts of accounts also fits into the

context of legal research that focuses on the control of the Brazilian public

administration. In recent times, it has been observed that empirical legal research

works aimed at analyzing the performance of the courts of accounts have emerged.

From this perspective, one can mention the Public Administration Control

Observatory, coordinated by professor Floriano de Azevedo Marques Neto and

formed by undergraduate and graduate students from the University of São Paulo,

which investigated aspects of the Federal Court of Accounts on the structure and

functioning of regulatory agencies. Also in this logic is the Observatory of the

Federal Audit Court, formed by researchers from the School of Law of

48 Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./Jun. 2020.

Machine Translated by Google 2 WHAT IS JURISDICTION?

São Paulo (FGV Direito SP) and the Brazilian Society of Public Law (SBDP), which

aims, with a broader research focus, to systematize norms, controller decisions and

legal texts relevant to this object of study. The use of jurimetry, in this regard, was a

refined method to improve and contribute to the aforementioned investigation, insofar

as it allows the use of different techniques from research, such as descriptive or

inferential statistics or linear regressions.

The research is justified insofar as society has demanded a better performance from

the judiciary system in general and from the audit courts, in particular, as indicated by

the research groups outlined above.

Legal activity has increasingly focused on mathematics. Knowing the numbers

to discern which is the majority jurisprudence has become a procedural strategy for a

good lawyer, who can no longer be oblivious to the identification of trends to assemble

his plan of action and arguments. Likewise, resorting to mathematics to assess the

impact of certain decisions is of fundamental importance for judges who, currently, in

addition to the legal requirement contained in Article 20 of Decree-Law No. ), need to

identify probable factual consequences arising from the application of normative acts,

even for their decisions to become effective and equitable.

The methodology used in this work is the bibliographical research and the

general objective is to demonstrate that the use of jurimetry improves the performance

of the courts of accounts. The specific objectives of this study are to present the

concept of jurimetrics and investigate its application in Brazil and its use in the courts of accounts.

49

Officially, jurimetrics began in the United States, identifying the use of the term

for the first time in the legal literature in 1949, in the article entitled “Jurimetrics: the

next step forward”, published in the journal Minnesota Law Review, by Lee Loevinger ,

considered the father of jurimetry. The author later published two other articles in which

he developed further reflections on the subject, namely, “Jurimetrics: science and

prediction in the field of law”, written in 1961, and “Jurimetrics: the methodology of legal

inquiry”, of 1963 (LOEVINGER, 1949, 1961, 1963).

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./Jun. 2020.

MAGAZINE

Machine Translated by Google His proposal was the first step towards applying the then new technological tool

of electronic computing to the legal field. However, he insisted on a deterministic

form of knowledge, according to which the uncertainty of law would undermine

the foundations for the construction of true knowledge.

Certainly, from a theoretical point of view, without going into the depth of

the conceptual debates on the subject at this point, there is a certain agreement

in the sense that jurimetry consists of the application of quantitative techniques

from statistics to law. For Yeung (2017), who adopts a very comprehensive view

of the subject and presents examples of jurimetric methods applied to judicial

decisions, any legal study that makes use of empirically collected data and whose

analysis is based in some way on statistical concepts, can be considered an

example of jurimetric work.

Its results allow not only the mapping of situations resulting from the application

of legal norms, but also allow the identification of variables that influence the

decision-making aspect, revealing, as applied, the estimated time for decisionmaking, in addition to the possible results that will be adopted.

In fact, the method uses probabilistic theories to try to explain the

frequency with which certain events occur in the legal world.

Other researchers subsequently dedicated themselves to the study of

jurisprudence, contributing to refining the definition and spreading the practice. In

this line, studies were developed by De Mulder, Noortwijk and Combrink-Kuiters

(2010), who proposed a concept of jurimetry that implies, in a simpler way, the

use of mathematics for decision analysis to explain and predict the behavior of

judgmental individuals . For the authors, jurimetry can be understood as a form of

empirical study of the form, meaning and pragmatism (and the relationship

between them) of the demands and authorizations of State issues, with the aid of mathematical models and with the use of the individualism as a paradigm to explain and predict human behavior, especially rationality. In Brazil, the study and application of jurimetrics has also become widespread, as will be mentioned below. His vision pointed to the scientific importance, specifically to statistical methods for lawyers, as he thought that knowledge of the law could be better understood through observation than speculation.

50 Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./June. 2020.

Machine Translated by Google MAGAZINE

Currently, easy access to information through the internet – where you

can search for various citations and judgments – certainly implies rethinking the

way in which agents in the legal field act, as they can no longer be tied to

eloquent rhetoric. or intuitive hunches to formulate your action strategies or to

produce your decisions, with broad knowledge of practical reality being essential.

Jurimetry allows us to look at the law from another angle, that is, not from

the bias related to what the law or doctrine says, hypotheses disciplined by the

norm and examples of jurisprudential pronouncements related to its application.

These are aspects commonly handled in another era of the legal phenomenon,

when erudite tools were enough to convince the judge, such as, for example, the

use of citations and mastery of codes.

According to Nunes (2016), the legal order is the result of the sum of

legal order and coordination. The planning plan is characterized by being

abstract, as its norms do not refer to conduct located in time and space;

systematizing, by operating an internal consistency control mechanism; and

hierarchical, since the norms are organized according to an order of superiority.

Legal coordination is characterized by being concrete, as its norms refer to

situations in time and space; unsystematic, as it does not operate a consistency

control mechanism; and autarchic, because all the norms are on the same level

and are not organized

51

Indeed, according to the president of the Associação Brasileira de

Jurimetria (ABJ), Marcelo Guedes Nunes, this approach aims to understand how

the legal order works in practice, with the purpose of investigating the relationship

between the planning and coordination plans, knowing the realities of the

Judiciary Power and legal practice, studying the results of the application of law

by the courts, analyzing the different degrees of adherence to laws and

understanding the situations in which they are no longer applied (NUNES, 2016).

Its scope makes it possible to understand the legal phenomenon as a

social fact and, by making it possible to make an association between what

happens in the world and the probability of what will happen, it also makes

possible interference and changes by law operators. In fact, jurimetry observes

the legal phenomenon considering its practical effects to then produce the

mapping of the situation in which the Law has been applied, allowing the

intervention of its operators, after all, nobody transforms what they ignore.

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./June. 2020.

Machine Translated by Google 52

Using jurimetry is not about forming data for use on a personal basis, in

order to profile, for example, the features of judges based on their decisions,

identifying their personal aspects and the way in which they make decisions, even

because the magistrate it is not linked to the profile that was created for you. This

seems to have been the argument used by the French for the enactment of Law

nº 222, of March 23, 2019, which promoted the reform of French justice, weakening

the use of jurimetry in the country (BECKER; BRÍGIDO, 2019).

That is why it is characterized as an important mechanism to guarantee

legal security and accountability of the bodies that use it, insofar as it serves as a

tool for receiving information about the behavior of public agents or the need for

greater decision-making justifications. It can also be considered as an important

legal instrument to guarantee accountability in the Judiciary, whether of a legaldecision-making or behavioral nature. In the first aspect, it refers to the possibility

of requesting information or justifications from magistrates for judicial decisions,

while in the second aspect, it can encourage and improve the receipt of indications

or justifications about the behavior of magistrates (honesty, productivity, etc.)

(BECKER; BRÍGIDO, 2019).

ranked in order of superiority. Usually, ordering has a legislative origin and

coordination has a judicial origin.

It consists of a diverse instrument, with a view to encouraging the

transparency and predictability of state activity, through the creation of a database

that provides qualified access to decision-making information by interested

parties, helping in the knowledge of certain deliberative practices and providing

parameters clearer to define whether they continue with their activities in that way

or whether they change their stance. It can also contribute to the performance of

the decision-making bodies themselves, giving them the opportunity to master

and take into account the reflections of their judgments when taking a certain measure.

In addition, jurimetry is now essential in view of the immense mass of

judgments handed down by decision-making bodies, especially in Brazil. Consider,

for example, the Federal Court of Auditors, which comes to deliver, considering

plenary and chambers, approximately 24,000 to 30,000 judgments per year

(BRASIL, 2019). Only a jurimetric study makes it possible to know the majority or

minority jurisprudence or, even, the jurisprudential tendencies of that body.

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./Jun. 2020.

Machine Translated by Google Marcia Milena Pivatto Serra (2013), professor and researcher with extensive

training in statistics and quantitative methods, also dedicated herself to the topic and

worked on building a database, exemplifying in a specific essay how descriptive

statistics could be used as a jurimetrics tool.

Jurimetrics has combined several pillars of knowledge, such as statistics,

technology and legal knowledge, in order to enable the adoption of rational strategies

in the legal field, based on plausible evidence of the occurrence of events.

By helping to generate quantitative data, it can be used in different areas of

legal work, both for those who work before the courts and for the managers of these

bodies. Also from an academic point of view, studies involving theoretical conception

and legal practice are being developed in Brazil in a contemporary way.

Cassio Modenesi Barbosa (2016), professor and judge of law, also carried

out current studies on the subject, highlighting the legal application in the

organization of judicial registries to allow the achievement of the quantitative goals

imposed by the National Council of Justice (CNJ).

Marcelo Guedes Nunes, lawyer, professor and founder of ABJ, which

From an academic perspective, it is observed that the topic of jurimetrics

was initially addressed in 1973 by Mario Losano, an Italian professor with great

affection for Brazil. For him (LOSANO, 1973 apud NUNES, 2016), who had a

published work analyzing the relations between information technology and law,

entitled Giusciber netica, it would not be appropriate to use statistics for Law, both

because of rejecting the idea of quantification of Law, as well as the impossibility of

predicting the behavior of the courts, given the voluntarist nature of the judge himself.

53

Other theoretical debates and practical experiences among academics have

been taking place in the country. Professors Felipe Chiarello de Souza Pinto and

Daniel Francisco Nagao Menezes (2014), in addition to articles in which, among

others, they sought to carry out a review of the international and national bibliography

on juri metrics, also discussed and proposed the formalization of their concept .

Furthermore, they promoted and participated in research within the scope of

Universidade Presbiteriana Mackenzie, in the period from 2014 to 2015, reporting

its application in Brazil (PINTO, 2014).

MAGAZINE

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./June. 2020.

3 THE APPLICATION OF JURIMETRY IN BRAZIL

Machine Translated by Google Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./June. 2020.

It is also worth mentioning the works developed by Zabala and Silveira

(2014), which, in addition to presenting theoretical and applied examples of

quantitative methods in legal matters, teach specific courses in the area at the

Escola Superior da Magistratura Federal, in Rio de Janeiro. Grande do Sul.

This data allows court managers to direct the provision of judicial services

in a less random way, condensing information that is normally either unstructured

or scattered throughout the operational environment, which has facilitated the

adoption of measures to identify solutions to problems.

Luciana Yeung, in turn, illustrates her article with themes in which ju rimetry

was applied in the analysis of judicial decisions (2017). Likewise, there is a recent

article written by lawyer Karina Reis Moacyr (2019) who both discusses the

concept of jurimetrics and exemplifies its use in lawyers' activities.

In the practical aspect, jurimetry was used in several legal segments. In

the Judiciary, it has already served to distinguish what the decision-making trends

are, identifying how legislation has been applied in practice and allowing the

assessment of the impacts of the Judiciary's actions in certain areas.

Interesting and particularly sensitive example in which the

54 matters.

conducts research that applies jurimetrics in different segments of the legal field, and also develops academic work in line with his doctoral thesis, which broadly addressed the various aspects surrounding the subject (NU NES, 2016).

It should be noted that, within the courts, the formation of a database and

the processing of information through the use of technology has made it possible

to evaluate the performance of Brazilian judicial courts. Since 2004, the CNJ has

published reports called Justice in Numbers (BRASIL, 2019), which contain

accurate data on the provision of judicial services, considering, for example, the

assessment of the structure of the Judiciary, in relation to its resources, both

financial and human resources, the degree of litigation in the various legal areas

and its growth, the average time for judging cases, productivity, the degree of

appealability of decisions, the impact of computerization on the decision-making

process, the bottlenecks for completing certain actions lawsuits, such as tax

foreclosures, conciliation rates, the time taken to process cases, the most recurrent

demands.

Machine Translated by Google MAGAZINE

55

This lack of connection of a group of children to a family that could initiate

an adoption process indicated that there was no adequate matching for adoption

carried out by the CNA, not only because, considering age alone, the children

were already at an advanced age in the registration and, therefore, had a low

probability of being adopted, since the suitors preferred children up to 6 years of

age, but also because the adoption process was bureaucratic.

The graph in Figure 1, produced with data from the National Adoption

Registry (CNA), the National Registry of Acolhidas Children (CNCA) and the

courts of law in 2014, demonstrates that there were children available for adoption

in that registry, but that the age profile preferred by suitors was diverse, giving

rise to little connection between children and suitors, as the children's age

progressed.

The legislative, administrative and judicial obstacles related to judicial

adoption processes were then analyzed, including both the process of removal of

family power and the adoption process itself.

jurimetria refers to the contributions of research carried out by ABJ to improve the

adoption system in Brazil, at the request of the CNJ, in 2015.

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./June. 2020.

Source: Brazilian Association of Jurimetry (2015).

Figure 1: Age of children available at CNA and ages that applicants accept

Machine Translated by Google Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./June. 2020.

A simulation study indicated that lowering the average age of enrollment

of children into the system by one year significantly increased the chance of

increasing the number of children who could be adopted.

In order to improve the debate about the discussion regarding the

procedural delay that would lead to impunity due to the practice of criminal

offenses, the research analyzed 157,379 judgments issued by the sixteen criminal

and extraordinary chambers of the TJSP and had a disturbing result, because,

when Comparing the results of appeals between these chambers, it remains to be demonstrated

The disclosure of this situation through the collected data, combined with

the opinion of specialists, allowed the formulation of proposals for administrative,

legislative and technological changes in order to guarantee greater speed in the

adoption processes, reducing agents that cause the high number of children with

advanced age. at CNA.

Therefore, there was a chapter of proposals resulting from the

aforementioned research that could help speed up the process, monitor children

at risk and improve the structure of the courts. The research concretely resulted

in Bill 5.860/2016, enacted on November 22, 2017 as Law 13.509/2017, which

streamlined the procedures related to the removal of family power and the

adoption of children and adolescents, changing the Statute of the Child and of

Adolescents (ECA) and the Consolidation of Labor Laws (CLT)

56 (BRAZILIAN JURIMETRY ASSOCIATION, 2015).

Among other findings, empirical evidence identified that the obstacles

encountered in the process of destitution of family power slowed down its course,

especially the delay resulting from the attempt to exhaust the means for quoting

parents who, in general, do not have correct addresses, did not work , among

other difficulties. The effectiveness of the guarantee of the right to full defense

and due process of law for parents increased the age of children who were in the

system and, in the end, led to an age group of almost “unadoptability” of these

children.

Another important survey that was also carried out by ABJ and which

demonstrates the importance of using and analyzing statistical data to qualify

the legal debate on certain topics refers to the investigation into the rates of

reform of decisions in criminal matters, focusing on of research the criminal

chambers of the Court of Justice of the State of São Paulo (TJSP) in the year 2014.

Machine Translated by Google MAGAZINE

In addition to assisting in the discussion of relevant legal issues, which

are often limited to a theoretical or principled debate of opinions, ju rimetry has

also helped in the specialization of justice and in increasing the quality of judicial

decisions.

There is a very high variation, with denied appeal rates ranging from 16% to 81%,

as shown in the graph in Figure 2:

This variation was not due to differences in procedural types according to

the subject, but to two hypotheses that could be worrying: either the distribution

of resources in the chambers would not be random or there would be a great

discrepancy in the performance of magistrates. In both situations, there would

be enormous legal insecurity, as for similar cases quite discrepant decisions

would be handed down, in which some defendants would remain convicted and

others would not, considering similar crimes (NUNES; TRECENTI, 2015).

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./June. 2020. 57

Source: Nunes and Trecenti (2015).

Figure 2: Decision reforms in criminal law chambers in São Paulo

Machine Translated by Google Within the scope of the Legislative Power, carrying out impact analyzes of

normative acts enables not only the realization of a predictability judgment on

certain choices, but can also indicate whether the norms created were effective

and/or applicable, or not. Empirical studies in this

In the area of the Executive Branch, jurimetrics can assist in evaluating

the effects of public policies and in the process of normative elaboration to be

carried out, for example, by sectoral regulatory bodies (regulatory agencies, for

example, since since the enactment of the Law Federal nº 13,848, of June 25,

2019, they must carry out the Regulatory Impact Analysis, which will contain

information and data on the possible effects of the normative act). Marcelo

Guedes Nunes highlights that an entity or working group that carried out an

independent assessment of a regulatory policy could assist in the analysis and

assessment of the results produced by government action in certain areas

(NUNES; RAMOS, 2018).

One of the most recent changes resulting from studies based on statistics

applied to law also resulted in the creation of the First and Second Business and

Arbitration-Related Conflict Courts by the TJSP. Through a study carried out by

ABJ and the São Paulo Lawyers Institute (ASSOCIA AÇÃO BRASILEIRA DE

JURIMETRIA, 2016), it was identified that 30% of business processes distributed

between 2013 and 2016 were underreported due to the misuse of the unified

procedural tables of the CNJ (the CNJ procedural tables, applied to the Judiciary,

aim to standardize and standardize taxonomic and terminological classes,

subjects and procedural movements within the scope of State, Federal and Labor

Justice, as well as the Superior Court of Justice, to be employed in procedural

systems, assisting in the collection of statistical data from the Judiciary), in addition

to having been found that business law processes take twice as long as

magistrates to complete and, in turn, judicial recovery processes take three times

as long judges' time until they are completed.

58

This research led the Court's General Inspectorate of Justice to propose

the creation of specialized courts, which, after a year and a half of operation, led

to a substantial increase in distributed disputes involving, especially, business

issues. The increase, equivalent to 84% in relation to the previous three years,

for logical reasons, became a clear indication of the success of the courts created

and resulted from the recognition of the quality of the judicial service, both by

specialized lawyers and by the market (CALÇAS; NUNES , 2019).

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./June. 2020.

Machine Translated by Google MAGAZINE

For companies, the theme is particularly important, since their legal

departments are considered a business unit “like the others”, therefore needing to

generate results, indicators, present values, etc. As Leonardo Barém Leite, a

lawyer specializing in business and corporate law, mentions, numbers can indicate

the chances of success in orders, as well as help to estimate the impact of issues

and risks on balance sheets and projects. The trends indicated by jurimetry, based

on the analysis of precedents and jurisprudence, will facilitate the evaluation, with

less chance of error, of the attitudes to be adopted in each situation, allowing the

definition of better strategies (LEITE, 2018).

Jurimetry has also helped in the management of the procedural portfolio by

the legal controllership bodies existing in law firms or corporate legal departments,

a sector that provides full support to the technical scope, in order to guarantee the

effectiveness, quality, safety and agility in the legal services, creating, supervising

and maintaining standard procedures (MORO, 2019).

59

The Public Ministry has also used jurimetry to analyze data on crimes

related to drug trafficking and crimes against the Public Administration (MPSP…,

2019). Recently, the Public Prosecutor's Office of the State of São Paulo renewed

an agreement maintained with the ABJ to deepen statistical analysis of these

crimes, with a view to identifying when, in what way and who are the people

involved in these practices, as well as the reasons why they occur. in a given

location, allowing the prosecutor to act through another paradigm, together with

non-criminal prosecutors and sectors of the Public Ministry. The study is particularly

interesting because Law nº 11.343/2006, the Drug Law, does not clearly define

what is drug trafficking (article 33) and what is drug possession (article 28),

making it difficult to know when a person may be prosecuted for the heinous crime

of trafficking or not (CARseara allow investigating large populations and identifying associations and

causality of events; overcome legislative debates based exclusively on personal

experiences and theoretical concepts of law operators; and diagnose with greater

precision the problems that justify the movement of the legislative machine. They

also demonstrate where there is hyperregulation and where there is hyperregulation,

that is, the fields in which there is already excessive normative intervention by the

State and those in which there is a lack of such intervention, in addition to

indicating other aspects, such as the evaluation of the results of transitions of

regimes or compliance with the goals pre-established by the Legislature (NUNES; PEREIRA, 2013).

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./June. 2020.

Machine Translated by Google searches in English with the word “jurimetrics” and the expressions “court of

account” and “courts of accounts”. Searches were carried out in the databases

and open access electronic journals Scientific Electronic Library Online (Scielo)

and Portal de Periódicos Capes/MEC, on August 22, 2019 in Portuguese and

Spanish and on January 6, 2020 in the three languages . Searches were also

carried out in the Brazilian Digital Library of Theses and Dissertations (BDTD), in

Portuguese, and in the Open Access Thesis and Dissertations (OATD), in English,

also on January 6, 2020. All these searches did not return any results. The Google

Scholar database was also searched, which, in addition to articles, contains

books, on August 22, 2019. As this base does not allow the use of Boolean

operators, a search was carried out with the

This study is exploratory in nature and used systematic bibliographical

research as a working method. As the object is to analyze the application of

jurimetry in the courts of accounts, a bibliographical research was carried out with

the word “jurimetria” and the expressions “court of accounts”, “courts of accounts”

and the acronym “TCU”, united by the operator boolean AND, since the objective

was to select the works that contained the word and one of the expressions or

acronym, and not just one of them (“jurimetria AND court of accounts”, “jurimetry

AND courts of accounts” and “jurimetry AND TCU” ). Likewise, searches were

carried out in Spanish using the word “jurimetria” and the expressions “tribunal de cuentas” and “tribunales de cuentas”. There were also

VALHO, 2019). The jurimetric analysis of the database of occurrences registered

by the Secretariat of Public Security of the State of São Paulo in the years 2012

to 2017 identified divergences in the classification of crimes made by delegates

and prosecutors of factual situations in which people were apprehended with the

same amount drugs. This finding may support the Federal Supreme Court to

assess the constitutionality or not of article 28 of the aforementioned law, in order

to establish the clarity and normative density of the legal provision or its adequate

form of interpretation, with a view to avoiding excessive discretion. delegates,

prosecutors and magistrates to define who is the user and who is the dealer

(FALCÃO; FREITAS, 2019).

60 4 METHOD

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Machine Translated by Google 5 RESULT: JURISDICTION AND THE COURTS OF ACCOUNTS

Minitab 19 (2019) defines confidence level:

Oliveira (2016) studied the application of articles 56 to 61 of the aforementioned

law, which deals with fines and sanctions, making use of inferential statistics,

defined by Correa (2003, p. 9) as the “process of obtaining information about a

population from results observed in the sample”.

The Google Scholar database presented four results for the first search and

fifteen for the second. From the reading of the abstracts of the studies of these

results, only one work, present in the two combinations, meets the purposes of

this research (OLIVEIRA, 2016).

61

Oliveira (2016) selected two random samples of 371 names each from a

list of 10,572 convicted by the TCU in the judgment of irregular accounts. The

sample size was calculated to ensure a 95% confidence level in statistical inferences.

Only one work was found in the literature that deals with the application of

jurimetry in the courts of accounts. Oliveira (2016) studied the taking of special

accounts (TCE), made by the TCU, which can be instituted when irregularities

occur in the accountability of public resource managers, with the purpose of

clarifying facts, identifying those responsible and quantifying the damage to the

coffers public. The TCU is responsible for judging and applying the sanctions

provided for in the Organic Law of the Federal Court of Accounts (Federal Law No. 8,443/1992).

words “jurimetry” and “courts of accounts” and another with “jurimetry” and “TCU”.

The confidence level represents the percentage of intervals that would include the population parameter if you pooled samples from the same population over and over again. A 95% confidence level usually works well. This indicates that if you had collected a hundred samples, and you had calculated 95% confidence intervals, you would expect approximately 95 of the intervals to contain the population parameter […].

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./Jun. 2020.

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Machine Translated by Google The calculation of the sample size was done according to Equation 1:

62

Figure 3 illustrates the concept of confidence level.

Correa (2003, p. 97) defines a confidence interval:

Figure 3: Confidence level

Source: Minitab 19 (2019).

The horizontal confidence line represents the fixed value of the unknown population mean. The vertical confidence intervals superimposed on the horizontal line contain the population mean value. The confidence interval completely below the horizontal line does not contain this value. A 95% confidence level indicates that 19 out of 20 samples (95%) from the same population produce confidence intervals containing the population parameter (MINITAB 19, 2019).

One way to express estimation precision is to establish limits that, with a certain probability, include the true value of the population parameter. These limits are called “confidence limits”: they determine a confidence interval, in which the true value of the parameter should be. Therefore, interval estimation consists of fixing two values such that (1 – ÿ) is the probability that the interval, determined by them, contains the true value of the parameter.

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./Jun. 2020.

The point estimation of a parameter does not have a measure of the possible error made in the estimation, hence the idea of constructing confidence intervals, which are based on the sampling distribution of the point estimator.

Machine Translated by Google n: sample size;

N = 10,572

63

The result obtained by applying the equation from Equation 1 was n = 371.

ÿ = 0.05

p: expected proportion;

Z: normal distribution value for a given confidence level;

According to Agranonik and Hirakata (2011), when there are no expected

proportions found in the literature or pilot studies were not carried out to estimate proportions,

which is the case in the study by Oliveira (2016), the solution to the problem is to assume

that p = 0.5 (50%), which leads to a sample value in favor of safety.

N: population size;

The study was divided into two parts. In the first, inferential statistics was used to

describe the general characteristics of the processes, estimating proportions. In the

second, relationships between variables were also analyzed using statistical inference.

In the descriptive approach, Oliveira (2016) focuses on article 16, item III, of the

ÿ: size of the confidence interval (margin of error).

said law, which refers to the irregularities of the accounts, in verbis:

In the study by Oliveira (2016), the values are as follows:

p = 0.5

Where:

Z = 1.96 (for 95% confidence level)

Equation 1: Calculation of sample size for proportions

Source: Agrononik and Hirakata (2011, p. 383).

Art. 16. The accounts will be judged: I – regular, when they express, in a clear and objective way,

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Machine Translated by Google II – regular with reservations, when they show impropriety or any other

lack of a formal nature that does not result in damage to the Treasury;

d) embezzlement or diversion of money, goods or public values (BRASIL,

1992).

III – irregular, when any of the following occurrences are proven:

a) omission in the duty to render accounts;

b) practice of an illegal, illegitimate, uneconomic management act, or

violation of legal or regulatory standards of an accounting, financial,

budgetary, operational or patrimonial nature;

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./Jun. 2020.

the accuracy of the accounting statements, the legality, legitimacy and

economics of the management acts of the person responsible;

c) damage to the Treasury resulting from an illegitimate or uneconomic management act;

64

Table 1 presents the absolute frequency and percentage by reason for TBI

onset for sample 1 and shows that item “c” is the biggest cause of TBI onset, with

28.6% of cases. Section “b” comes close behind, with 15.6% of cases.

It can be observed that, of the thirteen reasons studied, only two represent

44.2% of the reasons for initiating a TBI, which allows efforts to be focused on eliminating causes or concentrating audits.

58

Failure to report and damage to the public treasury (paragraph “a” and “c”)

11.9

15.6

49

Reason for establishing the TCE

Damage to the treasury resulting from an illegitimate or uneconomic management act (item “c”)

absolute frequency

28.6

Lack of information

106

15

Omission in the duty to report (item “a”)

13.2

Failure to report and embezzlement or embezzlement of money (paragraphs “a” and “d”) 1

8

4.0

44

0.3

Table 1: Absolute frequencies and percentage by reason for TBI initiation, sample 1

Embezzlement or diversion of money, goods or public values (item “d”)

(%)

Practice of an illegal, illegitimate, uneconomic management act, or violation of legal or regulatory standards of an accounting, financial, budgetary, operational or patrimonial nature (item “b”)

2.2

Machine Translated by Google 65

Table 2 shows the absolute frequency and percentage of the position or

function of the person responsible for the TCEs in samples 1 and 2. It can be seen

that, of the ten positions or functions analyzed, the mayor is responsible for 44.7%

of the TCEs in sample 1 and 41.2% of TCEs in 2. The legal work allows the TCU to

concentrate audit resources on the mayor, increasing the efficiency of its work.

1.9

Practice of illegal management act, damage to the treasury and embezzlement or

embezzlement of money (item "b", "c" and "d")

absolute frequency

Reason for establishing the TCE

51

9.2

Source: Oliveira (2016, p. 80).

Damage to the treasury and embezzlement or embezzlement (item "c" and "d")

Table 2: Absolute frequency and percentage of the position or function of the person responsible for

23

1 13.2

CNPQ or Capes scholarship holder

3.0

1 Omission of accountability, practice of an illegal management act, damage to the public treasury and embezzlement or diversion of money (items “a”, “b”, “c” and “d”)

percentage (%)

6.2 Employee

0

Practice of illegal management act and embezzlement or embezzlement of money (item

"b" and "d")

371

7

12

1

Position or function of the person in charge

12

3.2

0.3

14.0

TCEs in samples 1 and 2

3.2 0.3

Manager, boss or coordinator

100

Table 1: Absolute frequencies and percentage by reason for introducing the TBI, sample 1 (continued)

1

49 Absolute frequency 6

Lack of information

8

(%)

sample 1

0.3

Omission in the duty to render accounts, practice of illegal management act and damage to

the treasury (item "a", "b" and "c")

Practice of illegal management act and damage to the treasury (item "b" and "c")

52

Total

1.9

absolute frequency

0.3

Percentage (%)

0

2.2

14.0

11

7

Omission in the duty to render accounts, damage to the treasury and embezzlement or

embezzlement of money (item "a", "c" and "d")

sample 2

1.6

Fraud beneficiary

34

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Machine Translated by Google 66

The linear regression equation is given by Equation 2:

Correa (2003, p. 107) defines linear correlation:

The work presents several other descriptive analyzes (estimates of

proportions), in order to allow the TCU to use its Audit resources more efficiently.

Statistical inference was also used to study relationships between variables through

linear correlations. All results found have a confidence level of 95%.

4 Server 6.7

Sample 2

12

1.1

Mayor 44.7

47

371

Source: Correa (2013).

5

Absolute frequency

12.7

Table 2: Absolute frequency and percentage of the position or function of the person responsible for

treasurer or accountant 1.9

371

14

3.2

100

16

10.5

5.4

13

Percentage (%)

6 1.6 president or director

Position or function of the person responsible

25 2.4

TBIs in Samples 1 and 2 (continued)

Total 100

4.3

166

Absolute frequency

state secretary

9 1.3

Member of the bidding or inspection

committee

7

13 3.5

Sample 1

20

Source: Oliveira (2016, p. 83).

Percentage (%)

Others 3.5

153

municipal secretary 3.8

41.2

39

Equation 2: Linear regression

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Linear correlation is a correlation between two variables, whose graph approximates a line. The Cartesian graph that represents this line is called a scatter diagram. To be able to better evaluate the correlation between the variables, it is interesting to obtain the straight line equation; This straight line is called the regression line and the equation that represents it is the regression equation. The scatter diagram is constructed according to the sample data of n observations.

Machine Translated by Google Equation 3: Multiple linear regression, with an independent quantitative variable

and a nominal categorical qualitative variable (dummy)

Source: Gori (2019).

Y: dependent quantitative variable;

variable X and on which an estimated value is obtained).

X: independent quantitative variable;

or

Y = 11,593.71 + 0.01X (for other positions).

One of the multiple linear regressions carried out by Oliveira (2016) had:

D: nominal categorical independent qualitative variable (dummy: value 0 or 1).

Oliveira (2016) carried out several multiple linear regressions, with continuous quantitative

independent variables and qualitative independent variables (nominal categories, such as position

or reason for initiating the process). To be included in multiple linear regression, these nominal

categorical qualitative variables need to be transformed into dummy variables, which are coded

as 0 or 1, depending on whether the category is present or not. The multiple linear regression

equation, with an independent quantitative variable and a nominal categorical qualitative variable

(dummy) is presented in Equation 3.

67

Y: value of the fine in article 5;

X: debit amount;

D: position (1 if mayor or secretary and 0 if another position).

Y = a + b¹ X + b² D

For sample 2, the fine in article 57 is:

Where:

Where:

Y = 13,184.36 + 0.01X (for mayors and secretaries)

Y: dependent variable (in fact, it is the variable correlated with the X: independent variable;

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Machine Translated by Google – 1 (perfect negative correlation between variables);

The linear correlation coefficient can be presented as a measure of correlation, as it aims to indicate the level of intensity that occurs in the correlation between variables. […]

• r = 0 (there is no correlation between the variables or, even, the correlation is not linear, if it exists). The closer the r value is to the value “1”, the stronger the linear correlation.

• r =

The value of the correlation coefficient r varies between +1 and –1,

that is, it is limited between the values of the Interval [-1,+1].

Rev. Controle, Fortaleza, v. 18, n.1, p. 46-73, Jan./Jun. 2020.

The closer the r value is to the “0” value, the weaker the linear correlation.

• r = + 1 (positive correlation between variables);

6 DISCUSSION

This allows legal operators and public managers to obtain greater visibility regarding

fines and sanctions applied by the TCU, in addition to encouraging the implementation of a

didactic and preventive scenario, discouraging managers who violate the aforementioned

paragraphs out of bad faith or encouraging a quest to improve the quality of management

by those managers who suffer TCEs due to misinformation.

This regression has a linear correlation coefficient of 0.430.

Although jurimetrics is a relatively new field of knowledge, the literature presents

many success stories resulting from its application. The pragmatic and statistical turn in

law has resulted in precise changes in the management of courts, evaluation of data for the

formulation and modification of normative acts, identification of the way in which norms have

been applied, recognition of decision-making trends in the courts, among others. However,

68

Therefore, using jurimetrics, the value of the fine can be calculated, based on the

amount of the debt and the position of the person responsible, with a confidence level of 95%.

Correa (2013, p. 108) defines linear correlation coefficient:

Oliveira (2016) concludes by arguing that jurimetrics can help the TCU to improve

its efficiency by being able to plan its audits based on risk matrices based on quantitative

data.

Machine Translated by Google 7 FINAL CONSIDERATIONS

69

the bibliographical research on jurimetrics applied in the courts of accounts presented

as a result only one study, which showed that the use of quantitative methods, such as

the use of statistics applied to a sample of TCEs from the TCU, in addition to being

possible, allows describing the phenomenon, estimating proportions, for example, of

TCEs per section or combination of sections infringed, as well as TCEs by position or

function of the person responsible, using inferential statistics, with an accuracy of 95%.

The study also proved that it is possible to explain the relationship between the

process variables, since the use of statistical inference indicated that it is feasible to

explain the relationship between dependent and independent variables.

It was analyzed how the value of the fine (dependent variable) is explained in terms of,

for example, the value of the amount of the debt and the position of the person

responsible, with the same 95% precision, using multiple linear regression.

Both the general objective of the study (to demonstrate that the use of jurimetrics

can lead audit courts to improve their performance) and the specific objectives (to

present the concept of jurimetrics, investigate its application in Brazil and its use in audit

courts ) were reached. The limitation of this work is the presentation of a single study

(OLIVEIRA, 2013). This is due to the fact that systematic bibliographical research

resulted in this only study that deals with jurimetrics applied in the courts of accounts.

This limitation points to suggestions arising from it. The fact that the bibliographical

research presents a single study and that this study produced a wealth of quantitative

information, with enormous potential for practical application, in order to improve the

TCU's performance, leads to some considerations. The academic world, professional

associations and audit courts must start producing jurimetric studies based on data from

audit courts.

This study demonstrates, therefore, that the initial hypothesis, that the use of

Considering the large number of successful cases resulting from the application of

jurimetrics in other areas, especially in judicial courts, which have a structure similar to

that of audit courts, it is very likely that these studies will produce a lot of relevant

information from the aforementioned data.

jurimetria improves the performance of the courts of accounts, it is true.

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MAGAZINE

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