The interplay of judicial review and federalism choices in Brazil after the Republican Constitution of 1988

Arlota, Carolina Sales Cabral

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https://hdl.handle.net/2142/88157 Copy

Description

Title

The interplay of judicial review and federalism choices in Brazil after the Republican Constitution of 1988

Author(s)

Arlota, Carolina Sales Cabral

Issue Date

2015-07-13

Director of Research (if dissertation) or Advisor (if thesis)

Garoupa, Nuno

Doctoral Committee Chair(s)

Garoupa, Nuno

Committee Member(s)

• Reynolds, Laurie
• Cheibub, José Antonio
• Ginsburg, Thomas

Department of Study

Law

Discipline

Law

Degree Granting Institution

University of Illinois at Urbana-Champaign

Degree Name

J.S.D.

Degree Level

Dissertation

Keyword(s)

• Brazil
• Constitution of 1988
• federalism
• judicial review
• constitutional review
• federative conflicts
• courts
• Brazilian judiciary
• court specialization
• state supreme courts
• abstract review
• constitutional courts
• constitutional politics
• constitutional design
• local government
• municipalities
• annexation law
• comparative constitutional law
• comparative law

Abstract

This thesis investigates how federalism choices adopted by the Brazilian Constitution of 1988 impacts judicial review. In order to address this central question, this work was structured in three sub-questions designed to study specific federalism constitutional options pertinent to all distinct levels of Brazilian federalism, namely: federal union, states, and municipalities. The first sub-question targets the inclusion of local governments as autonomous constitutional agents. It considers annexation law as a proxy for local powers, comparing the decisions of the Brazilian Supreme Court (STF) to its U.S. counterpart (U.S.S.C.) in annexation cases. We conclude that the inclusion of municipalities in the Constitution of 1988, as of today, is not necessarily an example of successful design. We also find, counter-intuitively, that the USSC has been more active in the protection of rights than the STF. The second sub-question refers to the constitutional option granted to state supreme courts in creating specialized panels – and if differences across Brazilian state supreme courts when deciding cases of abstract review can be attributed to specialization. Using empirical methods, we find some evidence that the existence of specialized panels matters for the likelihood and rates of dissent as well as duration of procedures, but not for other variables. The final sub-question addresses the constitutional mechanisms of appointing justices to the Brazilian Supreme Court (which was transplanted from the U.S. Constitution) and its consequences for the adjudication of federative conflicts. Our research focuses on the alignment between revealed judicial preferences when adjudicating cases and presidential appointments in Brazil. We find some empirical evidence that judicial preferences do matter, but the patterns of politicization are weaker than in other similar courts. Our findings are sufficient to dismiss legalist accounts as well as accounts based on the Roman-Germanic tradition. Federal dynamics and constitutional politics are intrinsically related to the three sub-sets of problems proposed and are considered in light of political economy factors.

Graduation Semester

2015-8

Type of Resource

text

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http://hdl.handle.net/2142/88157

Copyright and License Information

Copyright 2015 Carolina Arlota

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