4. The 80s’ transformations:
institutional
MP becomes independent from the Executive
and can file civil lawsuits to protect
constitutional “rights" (even against the
Executive)
5. The 80s’ transformations (cont’d):
legal / constitutional
social and collective rights in the Constitution
(welfare, health, safety, environment, etc…): if
it is not a right, it is a principle (ex.: “free
enterprise”).
6. # of words in the Constitution
81,000
4,543
US Constitution Brazilian Constitution
7. The 80s’ transformations (cont’d):
political
“If it’s in the constitution, it is an enforceable
norm”: rise of judicial activism
(“neo-constitutionalism”)
8. Constitutional position of Latin American MPs
Executive
Judicial
Autonomous
0 3 6 9 12
Latin American MPs with powers to file civil suit
40%
60%
Only criminal Also civil
MP in other Latin American countries:
10. Brazil in the Ranking of Corruption Perception Index
0
20
40
60
80
1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
source: Transparency International
11. but… how to enforce a constitutional "right" or a "principle"?
what exactly is a right "to a clean environment", "to safety”?
solution (?):
principles (proportionality, polluter-pays, precautionary)
12. The proportionality principle:
step #1 minimum rationality
step #2 cost-effectiveness (LRM)
step #3 tradeoff analysis
based on… judicial intuition!
13. Without a rulemaking record or legislative history?
No APA neither RIA equivalent in Brazil
14. # of hits “proportionality principle” on Google Brazil
0
2750
5500
8250
11000
2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
15. Number of opinions by the Brazilian Supreme Court applying the proportionality principle
0
22.5
45
67.5
90
country prop_tot_90 92 94 96 98 2000 2002 2004 2006 2008 2010 2012
17. Regulatory Systems: Comparing the US and Brazil
US Brazil
legal procedure /
analytics
APA + RIA "Principles"
Rulemaking
power
agencies and independent
agencies
President, agencies (and
commissions)
Regulatory
oversight
courts (APA),
Executive (OIRA/RIA)
courts
Actors
stakeholders with standing +
automatic (rules triggering RIA)
stakeholders with standing +
MP
19. Regulatory Systems: Comparing the US and Brazil
US Brazil
legal procedure /
analytics
APA + RIA RIA
Rulemaking
power
agencies and independent
agencies
President, agencies (and
commissions)
Regulatory
oversight
courts (APA),
Executive (OIRA/RIA)
courts + Executive (RIA)
Actors
stakeholders with standing +
automatic (rules triggering RIA)
stakeholders with standing +
MP
20. Average rules/year in Brazil
0
100
200
300
400
President Congress Agencies (11) Environment
Source: estimated average based on the list of rules for 2012 and 2013 — websites of
Congress, ANATEL, AVISA, ANTT, ANEEL, and CONAMA
21. Signs of change:
OECD and RIA
Influenced by OECD, Brazil is taking initial
steps to implement a pilot RIA program (…
not applicable to Presidential decrees)
22. Improving Latin American regulatory governance:
“Neo-constitutionalism”, rights- and principle-
based approaches are not conducive to good
governance, neither to good quality regulation.
Evidence-based policy making and regulatory
impact assessment could provide the missing
structure to proportionality and other standards
of regulatory oversight.
23. Improving Latin American regulatory governance (cont’d):
New institutional designs required when the
President has significant regulatory powers
(e.g., MP?)
24. Thank you!
Daniel Lima Ribeiro, LL.M
SJD Candidate
Duke University School of Law
daniel.ribeiro@lawnet.duke.edu