Judging Policy: Courts and Policy Reform in Democratic Brazil - Hardcover

Taylor, Matthew M.

Hardcover

ISBN 10: 0804758115 ISBN 13: 9780804758116

Verlag: Stanford University Press, 2008

Inhaltsangabe

Courts, like other government institutions, shape public policy. But how are courts drawn into the policy process, and how are patterns of policy debate shaped by the institutional structure of the courts?

Drawing on the experience of the Brazilian federal courts since the transition to democracy, Judging Policy examines the judiciary's role in public policy debates. During a period of energetic policy reform, the high salience of many policies, combined with the conducive institutional structure of the judiciary, ensured that Brazilian courts would become an important institution at the heart of the policy process. The Brazilian case thus challenges the notion that Latin America's courts have been uniformly pliant or ineffectual, with little impact on politics and policy outcomes.

Judging Policy also inserts the judiciary into the scholarly debate regarding the extent of presidential control of the policy process in Latin America's largest nation. By analyzing the full Brazilian federal court system—including not only the high court, but also trial and appellate courts—the book develops a framework with cross-national implications for understanding how courts may influence policy actors' political strategies and the distribution of power within political systems.

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Über die Autorinnen und Autoren

Matthew M. Taylor is Assistant Professor of Political Science at the University of São Paulo. Winner, 2008 Vitor Nunes Leal Prize by the Brazilian Political Science Association (ABCP)

Matthew M. Taylor is Assistant Professor of Political Science at the University of São Paulo.Winner, 2008 Vitor Nunes Leal Prize by the Brazilian Political Science Association (ABCP)

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JUDGING POLICY

Courts and Policy Reform in Democratic BrazilBy MATTHEW M. TAYLOR

STANFORD UNIVERSITY PRESS

Copyright © 2008 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-5811-6

Contents

Figures and Tables................................................................................ixAcknowledgments...................................................................................xiAbbreviations.....................................................................................xiii1. Courts and Public Policy Reform in Brazil......................................................12. The Puzzling Policy Influence of Brazil's Federal Courts.......................................133. Policy Type and Judicial Contestation..........................................................484. The Supreme Federal Tribunal and Veto Players in Brazilian Politics............................725. Judicial Contestation of Policy: Political Parties.............................................906. Judicial Contestation of Policy: The OAB.......................................................1097. Courts in the Policy Process: Pension Reform in Cross-National Perspective.....................1328. Conclusion.....................................................................................153Notes.............................................................................................167References........................................................................................197Index.............................................................................................221

Chapter One

Courts and Public Policy Reform in Brazil

Courts are playing an increasingly important role in shaping public policy in contemporary Latin America. In Brazil, the judiciary has molded policy initiatives governing everything from political party representation to privatization; in Costa Rica, courts have shaped policies ranging from telecommunications competition to fishing regulations; and in Mexico, courts have had a hand in fashioning policies ranging from public sector pension reform to industrial expropriation. In short, from the Amazon to the Rio Grande, and in nations in between, courts' ability to influence the definition of policy alternatives (Schattschneider 1960, 68) is an increasingly prominent facet of political life.

Correspondingly, scholars of Latin America are increasingly analyzing the role of courts in policymaking throughout the region. This recognition of courts' policy relevance builds on four previous waves of political science research on courts in the region (Kapiszewski and Taylor 2006, 1–2): a first wave focused on judicial reforms (for example, Hammergren 1998, 2007; Prillaman 2000; Ungar 2002) and courts effects' on economic development (for example, Buscaglia and Ulen 1997); a second wave focused on the justice-related legacy of authoritarianism (for example, McAdams 1997; Barahona De Brito et al. 2001); a third wave focused on courts' contribution to social justice (for example, Méndez et al. 1999; O'Donnell 1994); and, finally, a wave focused on judicial politics (for example, Chavez 2004; Hilbink 2007) and the "judicialization" of politics (for example, Gloppen et al. 2004, Sieder et al. 2005).

Despite this growing interest, the policy role of the Brazilian judiciary remains underanalyzed in the comparative politics literature. This is surprising given the multiple justifications for tackling the Brazilian case. First, the Brazilian judiciary has been an especially consequential policy actor in Latin America's largest democracy. Three examples illustrate the active role Brazil's courts played in challenging many of the executive-driven policy reforms implemented between 1988 and 2004, the period covered in this volume:

• On April 29, 1997, Brazil's largest mining company, CVRD, was to be sold in an auction that was expected to garner over three billion dollars and kick off a round of major privatizations. A wave of lawsuits filed by opposition political parties and their allies, however, led to a nail-biting sequence of injunctions that repeatedly delayed and rescheduled the auction. Even though the sale was eventually concluded, a number of suits contesting the privatization process remained pending, some to this day.

• Agrarian reform has been a major issue in Brazil for several generations, but it became an increasingly contentious political subject during the 1990s, with land seizures by landless groups and violent police repression gripping public attention. Between 1993 and 2002, over three hundred people are believed to have died in conflicts in the countryside. Forced to address the issue, in 1999 the government adopted a new policy that streamlined expropriation procedures but also constrained the landless movement's tactic of land seizures. The policy seemed to be a successful attempt at reconciling interests on both sides. Successful, that is, until the national bar association successfully challenged the policy's limits on monetary claims in high court, thereby rendering the new policy largely ineffective.

• On September 30, 1999, Brazil's highest court made headlines when it suspended a tax on civil service pensions, in response to a suit by the bar association. The government was shaken by the defeat, which followed a fierce legislative battle for fiscal austerity in the wake of the catastrophic January 1999 currency devaluation, and generated a budget shortfall exceeding one billion dollars. Markets were even more unnerved: the Brazilian currency depreciated by 2 percent the following trading day, and strong capital outflows drove Central Bank foreign currency reserves down by 6.3 percent in the ensuing month. To compensate for the judicial decision and reverse deteriorating market sentiment, the Finance Ministry was forced to announce an emergency package of spending cuts and tax increases.

As these examples demonstrate, the policy effects of Brazil's federal court decisions can be significant. On numerous occasions, courts have been called upon to evaluate decisions made by Congress or the president, and on a fair number of such occasions, courts effectively halted policy implementation and sent policymakers back to the drawing board, with effects that reverberated across the entire body politic. Less dramatic, but nonetheless significant, were the thousands of daily interactions between government and society in the courts that, in an accretive fashion, have played a role in defining the options available to policymakers. In sum, the evidence suggests that over the past two decades, during Brazil's dual transition to market economics and democratic government, courts at all levels of the judiciary have helped to de- fine the alternatives available to policymakers, legitimating or de-legitimating certain policy choices.

In this sense, Brazil's courts directly challenge the prevailing regional stereotype of pliant judiciaries—a vision kept alive by cases such as Argentina or Chile, where courts have had a much less significant effect on policy outcomes in the post-transition era. More broadly, the Brazilian case offers a significant Latin American complement to existing research focused specifically on courts and public policy, which has predominantly addressed the experiences of more consolidated North American and European democracies and, more recently, the European Union and its own supranational courts (for example, Jackson and Tate 1992; Stone Sweet 2000, 2005;Volcansek 1992).

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Details zur Ausgabe

• Verlag: Stanford University Press
• Erscheinungsdatum: 2008
• Sprache: Englisch
• ISBN 10: 0804758115
• ISBN 13: 9780804758116
• Einband: Gebundene Ausgabe
• Anzahl der Seiten: 227
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: Nicht verfügbar