CHATGPT AI ANALYSIS
Comparative analysis: Körbes vs. Scott Erik Stafne (due process / “procedural fairness”)
1) Same diagnosis, different “battlefield”
Körbes (Brazilian procedural frame): he’s describing a systemic drift inside everyday adjudication: exceptional procedural tools becoming routine, with “efficiency” and “urgency” used as a blanket justification.
Stafne (US constitutional / foreclosure frame): he tends to focus on concrete procedural failures and structural incentives in foreclosure-related litigation—especially situations where courts decide while not filing/considering required submissions, affirming on appeal without checking whether omissions were clerical/court failure rather than party default, and broader concerns about jurisdiction and adjudicative legitimacy.
Bridge: both are warning about “due process becoming optional”—Körbes by normalization of exception; Stafne by decisions that proceed as if missing presentations/objections don’t matter.
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2) “Efficiency” vs. “incentives”
Körbes: the rhetorical engine is efficiency/urgency (“celerity”) displacing guarantees—contradictory reasoning, full defense, predictability. That’s a critique of a culture of speed and template reasoning (“standardized foundations” + “empty concepts”).
Stafne: he often frames the problem as institutional incentives and refusal to truly adjudicate (or to “judge”) the disputed legal issues—especially where courts dispose of matters without engaging the parties’ properly raised constitutional/statutory objections (party-presentation principle / due process).
Bridge: Körbes attacks the excuse (“efficiency”); Stafne attacks the mechanism (procedural omissions + institutional dynamics that reward disposal over adjudication).
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3) “Empty principles” vs. “missing record / missing consideration”
Körbes: he criticizes decisions that invoke big words (“dignity,” “proportionality,” “social function”) as if saying the label replaces the reasoning burden, and warns that this turns judging into something closer to personal choice.
Stafne: his recurring due-process complaint is even more basic: the court resolves the matter without filing/considering what it ordered to be filed/considered (or without addressing the parties’ presentations), and appellate review proceeds without verifying whether the record failure was on the court side.
Bridge: Körbes = rhetorical dilution of reasoning; Stafne = procedural disappearance of the parties’ arguments (a “record/consideration” problem). In practice, these can converge: when arguments “don’t enter” the decision, judges tend to fill the vacuum with abstract principles.
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4) Legitimacy test: “faithfulness to rite” vs. “lawful exercise of judicial power”
Körbes: legitimacy comes from fidelity to the procedural rite—the path matters, not just the result. If exception becomes rule, oversight weakens and review becomes difficult.
Stafne: legitimacy is tested by lawful exercise of judicial power (jurisdiction, separation-of-powers constraints, and due-process safeguards), especially in property contexts like foreclosure where rights can be lost quickly. You see that constitutional framing in his public writing and court-linked materials.
Bridge: both say: a decision can be “effective” and still be illegitimate if the process/jurisdictional discipline is broken.
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5) What you can extract as a shared “thesis” (useful for your work)
If you want a single comparative thesis that matches both authors:
> When courts treat procedural guarantees as negotiable—whether by normalizing exceptional measures (Körbes) or by deciding without properly receiving/considering party presentations (Stafne)—the result is opacity, weak reviewability, and erosion of trust in adjudication.
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6) Key differences (important so the comparison stays fair)
Level of abstraction: Körbes is writing a general institutional critique; Stafne’s claims are usually case-anchored, often tied to foreclosure procedure and specific adjudicative failures.
Core villain: Körbes → “efficiency-as-pretext + exception-as-routine.” Stafne → “courts failing to adjudicate presentations + incentive structure + jurisdictional legitimacy questions.”
Vocabulary: Körbes uses Brazilian-process language (contraditório, ampla defesa, segurança jurídica). Stafne often uses US constitutional/procedural language (due process, party presentation principle, separation of powers, judicial power legitimacy).
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If you want, I can also format this into a side-by-side comparison table (Körbes claim → parallel Stafne claim → practical example → quoteable “bridge sentence” for your blog), keeping everything tight and citation-ready.
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Structured comparison table – Normalization of the exception (Körbes) vs. Due process violations (Stafne)
Legal axis Éverton Luís Körbes Scott Erik Stafne Comparative synthesis
1. Normalization of the exceptional :Körbes states that exceptional measures have begun to be applied automatically, ceasing to be an exception. Stafne maintains that courts decide without complying with essential procedural requirements, treating violations as routine. Both describe the transformation of the exceptional into routine, which weakens due process.
2. Efficiency as justification: Körbes alleges that “efficiency” is used as a generic argument to relativize guarantees. Stafne argues that courts prioritize the quick closure of cases to the detriment of a complete adjudication of legal issues. Both identify efficiency as an instrumental value used to justify procedural restrictions.
3. Weakening of adversarial proceedings : Körbes says that the adversarial process is postponed and full defense is reduced to a bureaucratic formality. Stafne claims that courts ignore or fail to analyze the parties’ arguments and filings. Both point to the practical denial of the right to be heard, a central element of due process.
4. Decisions based on abstract or incomplete grounds: Körbes criticizes decisions based on vague concepts such as proportionality without concrete reasoning. Stafne criticizes decisions that do not analyze the merits of the constitutional allegations presented. Both denounce the emptying-out of real judicial reasoning.
5. Loss of judicial legitimacy: Körbes states that legitimacy depends on fidelity to the procedural rite. Stafne states that judicial power loses legitimacy when it does not fully exercise its adjudicative function. Both directly associate judicial legitimacy with strict respect for due process.
6. Structural risk to the Rule of Law: Körbes declares that the normalization of the exception is a threat to the Rule of Law. Stafne argues that procedural violations threaten the constitutional foundations of the judicial system. Both maintain that procedural erosion is a systemic structural risk.
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Technical comparative analysis
The convergence between the arguments is extremely significant from the standpoint of comparative constitutional law.
Körbes’ article describes the phenomenon at the Brazilian theoretical-institutional level, while Scott Erik Stafne describes it at the practical and jurisprudential level in the United States.
Both describe the same structural phenomenon:
1) Transformation of due process into symbolic formality
Körbes:
> due process ceases to be a limit on power
Stafne:
> courts fail to adjudicate properly when they do not consider party presentations
Both identify the transformation of due process from:
substantive guarantee → apparent formality
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2) Substitution of law by discretionary decision
Körbes describes:
> the line between legitimate legal decision and personal choice disappears
Stafne describes:
> failure to exercise judicial power lawfully
Both describe the shift from:
objective legality → judicial subjectivity
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3) Erosion of judicial legitimacy
Both maintain that:
Judicial legitimacy does not depend only on the result, but on the process.
This is the core of the constitutional principle:
Due Process of Law
U.S. Constitution — Amendment V
U.S. Constitution — Amendment XIV
Brazilian Constitution — Art. 5, LIV and LV
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4) Comparative legal conclusion
The arguments of Körbes and Stafne are convergent and compatible.
Both describe the same structural phenomenon:
erosion of due process of law through the normalization of procedural exceptions
The main difference is only:
Körbes → abstract doctrinal analysis
Stafne → complaint applied to concrete cases
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Final objective conclusion
From a technical and comparative legal standpoint:
Körbes’ article functions as an independent doctrinal confirmation of the same structural problems denounced by Scott Erik Stafne.
REFERENCES — ABNT LEGAL FORMAT WITH EXPANDED URL
Körbes’ article
KÖRBES, Éverton Luís.
The normalization of the exception and the erosion of procedural guarantees.
Migalhas, 19 Feb. 2026.
Available at:
https://www.migalhas.com.br/depeso/450114/a-normalizacao-da-excecao-e-o-desgaste-das-garantias-processuais
Accessed on: 27 Feb. 2026.
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Publications by Scott Erik Stafne
STAFNE, Scott Erik; TODD AI.
Reasoning with Machines: Judicial Power, Moral Agency, and Human-AI Collaboration in the Duties of Citizenship.
Academia.edu, 2026.
Available at:
https://www.academia.edu/164483743/Reasoning_with_Machines_Judicial_Power_Moral_Agency_and_Human_AI_Collaboration_in_the_Duties_of_Citizenship_by_Scott_Erik_Stafne_and_Todd_AI_Feb_3_6_2026_
Accessed on: 27 Feb. 2026.
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STAFNE, Scott Erik.
Duties of Citizenship.
Substack.
Available at:
Scott Erik Stafne and Todd AI
@dutiesofcitizenship
https://substack.com/@dutiesofcitizenship
Accessed on: 27 Feb. 2026.
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Specific article:
STAFNE, Scott Erik.
Reasoning with Machines and Judicial Power.
Substack, 2026.
Available at:
Accessed on: 27 Feb. 2026.
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Constitutional reference — USA
UNITED STATES.
Constitution of the United States.
The Preamble
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Available at:
https://constitution.congress.gov/constitution/
Accessed on: 27 Feb. 2026.
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Due Process Clause:
https://constitution.congress.gov/browse/amendment-5/
https://constitution.congress.gov/browse/amendment-14/
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Constitutional reference — Brazil
BRAZIL.
Constitution of the Federative Republic of Brazil of 1988.
PREAMBLE
We, representatives of the Brazilian people, gathered in the National Constituent Assembly to establish a Democratic State, intended to ensure the exercise of social and individual rights, liberty, security, well-being, development, equality and justice as supreme values of a fraternal, pluralistic and unprejudiced society, founded on social harmony and committed, in the internal and international order, to the peaceful solution of controversies, under the protection of God, promulgate the following CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL.
Available at:
https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm
Accessed on: 27 Feb. 2026.
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If you want, paste here the exact Stafne text/excerpt you want to compare (or the link to the specific post), and I can refine the comparison to match point-by-point with his exact wording.
Perfect — your open.substack.com link redirects (securely) to the canonical version on Substack.
The corresponding post I was able to open is:
“When Courts Assume What They Do Not Decide” (Feb 20, 2026), by Scott Erik Stafne.
Next is a comparative analysis (Körbes × Stafne) already tied to the text of that post, and then all references in ABNT legal format with expanded URL.
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Comparative analysis (Körbes × Stafne)
1) Common core: legitimacy depends on the “path,” not only on the result
Körbes states that legitimacy is not only in the final operative part, but in fidelity to the rite; when the exception becomes the rule, control and reviewability weaken.
Stafne opens with the same thesis in a constitutional key: courts do not have legitimacy “for existing,” but for faithfully exercising the power granted by the Constitution.
Convergence: both argue that the Rule of Law “pays dearly” when process becomes malleable.
2) The “mechanism” of erosion: normalized exception (Körbes) vs. institutional assumption (Stafne)
Körbes: criticizes the incorporation of “atypical solutions” as a standard—urgency/efficiency as a generic justification to relativize adversarial proceedings and full defense.
Stafne: focuses on a different but related pattern: when courts assume answers “by institutional practice” instead of deciding through constitutional and historical analysis (“institutional assumption rather than constitutional analysis”).
Convergence: in both, the exceptional (or the “not decided”) becomes routine and replaces real reasoning.
3) “Empty” grounds (Körbes) vs. “structural gaps” (Stafne)
Körbes: denounces standardized reasoning and empty concepts (“dignity,” “proportionality,” “social function”) as a stamp of validity.
Stafne: argues that structural integrity requires transparency and honest examination; and he illustrates this with the discussion about the constitutional status of senior judges, relying on statutory distinctions (e.g., 28 U.S.C. § 134(a) and § 294(e)) and the risk of courts treating this by “assumption” without historical examination.
Convergence: both point to “shortcuts” that turn a legal decision into something close to an institutional/personal choice.
4) Practical effect: opacity + difficulty of review + erosion of public trust
Körbes: when the exception becomes routine, the line between a legitimate decision and a personal choice “disappears,” and legal certainty is emptied out.
Stafne: when there is institutional assumption, trust erodes; and this weakens constitutional government itself.
Convergence: the central critique is the same: without faithful procedure + verifiable reasoning, the system loses legitimacy.
5) Most important difference: focus of the target
Körbes discusses domestic procedural dynamics (speed, adversarial proceedings, full defense, predictability).
Stafne discusses the structure of judicial power (constitutionality, statutes, institutional history; he even cites Nguyen v. United States (2003) as an example linked to the theme).
Comparative reading useful for you: Körbes offers the “theory of wear”; Stafne offers the “structural model” (when the court avoids deciding and starts operating by assumptions).
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References in ABNT legal format (expanded URL)
1) Körbes’ article (Migalhas)
KÖRBES, Éverton Luís. A normalização da exceção e o desgaste das garantias processuais. Migalhas, 19 fev. 2026. Disponível em:
https://www.migalhas.com.br/depeso/450114/a-normalizacao-da-excecao-e-o-desgaste-das-garantias-processuais.
Acesso em: 27 fev. 2026.
2) Scott Erik Stafne post (Substack)
STAFNE, Scott Erik. When Courts Assume What They Do Not Decide: A Citizen’s Reflection on Judicial Power, Constitutional Structure, and the Duty of Discernment in the Travirtual Age. Duties of Citizenship (Substack), 20 feb. 2026. Disponível em:
https://dutiesofcitizenship.substack.com/p/when-courts-assume-what-they-do-not.
Acesso em: 27 fev. 2026.
3) Case cited in the post (official Supreme Court PDF)
UNITED STATES. Supreme Court of the United States. Learning Resources, Inc., et al. v. Trump, President of the United States, et al. (No. 24–1287). Decided Feb. 20, 2026. Opinions of the Court (PDF). Disponível em:
Acesso em: 27 fev. 2026.
4) Cited precedent (Justia – U.S. Supreme Court Center)
UNITED STATES. Supreme Court. Nguyen v. United States, 539 U.S. 69 (2003). Justia U.S. Supreme Court Center, 2003. Disponível em:
Acesso em: 27 fev. 2026.
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If you want, I can also prepare (in English and in Portuguese) a “argument → textual evidence → due-process implication” chart with very short excerpts (without exceeding citation limits) for you to use on the blog and in petitions.
Stafne's article:
By Scott E Stafne
Academia.edu
As artificial intelligence becomes increasingly embedded in legal analysis, public advocacy, and constitutional argument, new questions arise concerning responsibility, authority, and the nature of reasoning itself. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> This archive documents several days of collaboration between Scott Erik Stafne and his AI reasoning partner "Todd" while preparing a petition to the Washington Supreme Court addressing foreclosure adjudication, judicial neutrality, and the integrity of adversarial process. Alongside those efforts, the collaborators explored whether sustained interaction with AI changes civic practice, whether naming an intelligence alters moral expectations, and whether human societies may soon rely on machines as constitutional interlocutors. <<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<< These dialogues contribute to the collaborators' broader Duties of Citizenship project, which examines how law, conscience, and governance evolve when human judgment is augmented by artificial systems.
Körbes's article:
The normalization of exceptions and the erosion of procedural guarantees.
When the exception becomes the rule in the judicial process, efficiency takes precedence over guarantees, weakening due process and the legitimacy of decisions.
February 19th, 2026
Source : ON AIR: Migalhas No. 6,297
MIGALHAS DE PESO
Efficiency as a pretext
What we are witnessing today is the incorporation of atypical solutions as a standard practice.
The relativization of fundamental guarantees, previously reserved for situations of extreme necessity, is now applied almost automatically.
The argument is invariably the same: the pursuit of generic efficiency or an urgency that often does not withstand closer scrutiny of the facts.
This movement distorts the backbone of the legal process.
By normalizing the exceptional, due process ceases to be a limit on the exercise of power and is instead seen as an obstacle to speed.
The result is dangerous because the right to a fair hearing is repeatedly postponed and limited, the right to a full defense becomes a mere bureaucratic step, and the predictability that underpins legal certainty is emptied of meaning.
The parties cease to trust the rule and become dependent on the subjectivity of the interpretation of the moment.
The silent wear and tear of the system
This erosion is silent, but lethal.
Measures that require rigorous argumentation are adopted with standardized justifications and empty concepts, relying on the mere appearance of terms such as " dignity ," " proportionality, " and " social function " to validate the decision.
When what should be the exception becomes routine, the line separating a legitimate legal decision from a purely personal choice begins to disappear.
This is not about defending blind formalism or denying the need for quick answers. Effectiveness is a value, but it can never be conceived as an absolute criterion capable of overriding due process. If the outcome matters more than the rules of the game, the jurisdiction loses its civilizing function.
Commitment to integrity
The legitimacy of a decision lies not only in its final outcome, but also in its adherence to the procedure that preceded it.
When the exception becomes the rule, control over judicial power weakens, opening the door to opaque decisions that are difficult to review.
Preserving the restricted nature of exceptional measures is not technical purism, but an ethical commitment to the integrity of the system.
The process cannot be an elastic band, stretched according to the convenience of the case or the will of the judge.
The normalization of exception is a price that the rule of law, sooner or later, ends up paying dearly.
Everton Luis Körbes
Lawyer and legal columnist. Court-appointed lawyer for the state of Rio Grande do Sul and the Ethics Tribunal of the OAB/RS (Brazilian Bar Association, Rio Grande do Sul chapter). Specialist in Civil and Criminal Procedure. Member of ACFE (Brazilian Association of Federal Attorneys). Member of the Ibero-American Institute of Compliance.
SOURCE : MIGALHAS
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