Monday, May 1, 2017

A Better Use of Our Courts: Brazilian Experience in Dispute System Design for the Public Sector

by Adriel Borshansky ’15


Justice José Antônio Dias Toffoli

Justice José Antônio Dias Toffoli

The Vice-President of the Brazilian Supreme Court, Justice José Antônio Dias Toffoli, spoke to students, faculty, and community members on April 11th about his experiences working to implement dispute systems design in Brazil’s public sector.

A graduate of the Faculty of Law of the Universidade de Sao Paulo, Justice Toffoli is at the center of a movement to reinvigorate the justice system in Brazil. He has served as Federal Solicitor General for Brazil and General Counsel of the Workers’ Party. From 2014 to spring of 2016, he served as Chief Justice of the Supreme Electoral Court, which supervises the Brazilian voting system at every level. In 2009, Justice Toffoli became one of the youngest justices to ever serve on Brazil’s highest court when he was named to the Brazilian Supreme Court by former President Luiz Inácio Lula da Silva.

In September of 2018, Justice Toffoli will likely become Chief-Justice of the Supreme Court. As he looks ahead to his tenure in the rotating position, one of Justice Toffoli’s primary goals is to reform the judicial system in order to “avoid litigation and ensure greater efficiencies.”  To show that this work is possible, he cited the Federal Center for Conciliation (CCAF), which he spearheaded, as well as a broader movement in Brazil during the last three years to expand the use of mediation and conciliation. He sees room for an extrajudicial system for disputes between public entities, including a mediation service created to avoid the overburden of Federal Courts by agencies and other entities while effectively solving their disputes.

“The focus should not be who is right and who is wrong,” Justice Toffoli said in his speech in Wasserstein Hall, “but advancing the real interests of the parties. We need a humanizing judiciary, which seeks to be a tool for empowerment.”

Arguments for the kinds of extrajudicial systems that Justice Toffoli advocates often revolve around efficiency. Indeed, Justice Toffoli highlighted inefficiencies in Brazil’s legal system and provided examples of how dispute systems design could save significant amounts of money and time. In his role as Chief-Justice of the Supreme Court, he hopes to implement “mechanisms that produce a suitable response with the least possible expenses, pain, and time.”

But Justice Toffoli also spoke on an even deeper level about shifting the entire culture of resolving disputes. He criticized the financial incentives behind litigation for lawyers and questioned the assumed centrality of lawyers or judges in resolving disputes. With optimism and determination, he spoke about the role of ingenuity in the courts and argued that, “It is possible to continually improve our court system and better serve its users.”

At the end of his talk, HNMCP Director Bob Bordone thanked Justice Toffoli for all of his work and expressed confidence that the Harvard Law School community would soon be citing him when talking about the history of legal movements.

In his final remarks, Justice Toffoli articulated a purpose for legal professionals not often heard in law school: “To serve as healers of human conflict.”