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Title:The interplay of judicial review and federalism choices in Brazil after the Republican Constitution of 1988
Author(s):Arlota, Carolina Sales Cabral
Director of Research:Garoupa, Nuno
Doctoral Committee Chair(s):Garoupa, Nuno
Doctoral Committee Member(s):Reynolds, Laurie; Cheibub, José Antonio; Ginsburg, Thomas
Department / Program:Law
Degree Granting Institution:University of Illinois at Urbana-Champaign
Constitution of 1988
judicial review
constitutional review
federative conflicts
Brazilian judiciary
court specialization
state supreme courts
abstract review
constitutional courts
constitutional politics
constitutional design
local government
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.
Issue Date:2015-07-13
Rights Information:Copyright 2015 Carolina Arlota
Date Available in IDEALS:2015-09-29
Date Deposited:August 201

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