This event is organised by the Constitutional Law and Politics Working Group and hosts a presentation by Taís Penteado (Yale Law School).
In this presentation, Brasilian JSD candidate at Yale Law School Taís Penteado argues that adjudication must be reimagined to address structural inequalities that are behind rights violations. Rather than merely seeking reparation, courts should empower resisting groups by incorporating them into legal decision-making through participatory mechanisms with substantive authority. This conceptualisation, defined by the author as the 'Power-Enhancing Theory of Adjudication', recognises that many rights violations - such as inadequate housing, displacement, structural racism, violence and neglect against indigenous communities, and climate injustice - are symptoms of deeper systems of subordination.
Grounded in the anti-subordination principle, Taís’ presentation contends that adjudication should both diagnose and dismantle the conditions enabling systemic oppression. She proposes that this new goal demands that the judiciary adopt participatory mechanisms inspired by the Empowered Participatory Governance (EPG) model, which departs from procedural inclusion toward devolving decision-making power to affected groups. Using Brasil’s Participatory Budgeting as a focal point, she explores how such a model could be adapted to the judiciary, with reference to experiences in Latin America, South Africa, and India. While in other realms it is more palatable to accept such bodies as holding binding decisions in the judiciary, this idea would normally be dismissed upfront.
Part of this work is, then, to reflect on the implications of devolving decision-making powers to resisting groups for adjudication’s particularities, including the special form of deliberation that happens in that setting: legal interpretation. As her paper argues, the Power-Enhancing Theory of Adjudication demands a new form of interpretation — the Joint Venture Theory of Interpretation. By challenging traditional deliberative democracy frameworks, she advocates for an adjudication form that fosters countervailing power—enabling resisting groups to contest state action, structural inertia, and the legal narratives that sustain subordination. While courts are not the sole venue for social transformation, Taís provides a blueprint for ensuring that rights litigation is a tool of emancipation rather than demobilisation. Ultimately, she calls for an institutional redesign that aligns adjudication with the broader struggle for substantive equality and transformative justice.
Taís Penteado is a Brazilian JSD candidate at Yale Law School, where she also completed her LL.M. (2022) and served as Visiting Researcher (Fall 2023) and Fellow (Winter 2024), and holds Ph.D (2025), M.A. (2020) and LL.B. (2016) degrees from FGV Law School of São Paulo (2016). Taís’s research revolves around the relationship between antisubordination-based approaches to law, social transformation and constitutional law and theory.
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