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
- 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.
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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
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3 THE APPLICATION OF JURIMETRY IN BRAZIL
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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.
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Source: Brazilian Association of Jurimetry (2015).
Figure 1: Age of children available at CNA and ages that applicants accept
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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).
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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 […].
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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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