Is Thin Rationality Review a possibility to Brazilian Administrative State?

This paper aims to present a discussion about the forms of agencies decision’s Judicial Review . Jacob Gersen and Adrian Vermeule, disagreeing with most of legal academy and some lower court argue that decisions making under uncertainty can provide the agencies good reasons to depart from a rigid view of rationality. This view, called Thin Rationality Review presents an empirical data that shows that the Supreme Court has been deferring to the agency’s challenges in absolute terms and textual support to demonstrate that it has been sensitive to the agency’s decision-making limitations under uncertainty in its ongoing jurisprudence. The authors provide a careful description of the agency’s rational decision-making under sub-optimal decision conditions. Is this the best perspective? If so, can it be adopted on Brazilian Administration, once the new government agenda includes privatization and regulation?

Domestic versus foreign affairs – an outdated dichotomy?

Traditionally, governments enjoyed exclusive competence over foreign affairs and parliaments were reduced to holding them to account ‘after-the-fact’. However, one of the consequences of the increasingly globalised world of the 21st century is that decisions made in the international context impact far more on a country’s domestic. This challenges the classic dichotomy of ‘domestic’ versus ‘foreign’ affairs which leads to a parliament losing its traditional role as the key forum for debate and decision-making. With its decisions on the European Stability Mechanism, the German Constitutional Court seemed to have tried to halt that trend by using the Parliament’s budgetary control powers to limit the Government’s foreign policy prerogative. However, this paper will argue that the cases illustrate precisely why the traditional theoretical framework is flawed and will explore how a more radical change could result in greater accountability and thus decrease popular distrust of government.

Judiciary protagonism in the context of authoritarian governments

This paper intends to address the issue of judiciary protagonism in the specific context of the rise of ultra right discourse in politics. It will assess the role of judiciary when challenged to confront executive orders or legislation in face of its constitutionality. The relevance of the proposed paper resides on its affirmation of a strong judiciary as a way to achieve an effective protection of minorities interests. When the bureaucratic political machine is coopted by antidemocratic and authoritarian players, the role of elected representatives of minority groups is undermined. If the regulation issued by the elected political body aim to alter or eradicate constituted rights, a simple deferral by judicial instances to such decisions – deemed “political” – can be questioned. The idea of checks and balances must impose to the judiciary the legitimacy to properly examine executive orders and legislation and to suppress them when opposed to constitutionally protected values.

Regulating through litigation: the nature of regulatory rulings

The study of the relation between Courts and regulation usually focuses in determining the extent to which Courts can review technical decisions dictated by administrative agencies. However, there is another phenomenon that requires attention, which is the establishment of specialized tribunals with jurisdiction over economic regulation. Particularly since some of those tribunals, are empowered to dictate general measures and regulations on economic sectors. These rulings, which usually originate in adversarial proceeding before the tribunal, constitute a new source of economic regulation that has not yet been subject to deep analysis.
We shall try to establish the nature of these rulings in order to determine if there is any constitutional or legal tool to control their issuance and content. Specifically, we will discuss whether these rulings should be considered an administrative act or a proper judicial decision by reviewing their main elements and distinctive characteristics.

The Migration of Constitutional Ideas in Latin America: Dynamics, Underlying Assumptions, and Possible Improvements

Certain features of judicial borrowing in Latin America point to a search for an external source of authority to sort out constitutional and human rights issues. Within the context of an increasingly globalised constitutional law, references to foreign and international courts surely make sense, but if the goal is to truly improve the quality of decisions and to find better solutions collectively, it is worth reflecting on potential reasons behind the judges’ method and eagerness to embrace the borrowing trend. In turn, the findings may point to ways to strengthen the practice. Thus, the paper will first pinpoint certain characteristics, patterns and dynamics of judicial borrowing in the region, to then consider how they play out in practice by analysing the influence of the ECtHR in Argentina. Lastly, it will draw from postcolonial theory to explain some aspects of the Latin American approach to borrowing, and build from it to suggest ways to improve the practice.