Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 14: Presidential Dominance from a Comparative Perspective: The Relationship between the Executive Branch and Regulatory Agencies in Brazil
Mariana Mota Prado* National legal systems appear increasingly similar, largely due to the wholesale transplantation of legal principles and institutional arrangements across national borders. However, although these transplanted institutions might initially look similar, considerable differences emerge as they operate in practice. By definition, transplanted institutions function within a different political system. Immersed in a new political environment, these institutions will not always mimic their counterparts in the country of origin. The effectiveness of transplanted laws, and, therefore, the institutions created by them, depends on their consistency with or their adaptation to the preexisting legal order in the receiving country (Berkowitz et al. 2003). For comparative law scholars, the different operation of original and transplanted institutions suggests that transplanted academic theories, based on the country of origin, cannot be uncritically applied to analyze these new institutions. To illustrate this, I shall discuss the case of regulatory agencies. In the last two decades, independent agencies have become the primary means of regulating infrastructure industries worldwide (Gilardi 2008). This is especially true in Latin America (Jordana and Levi Faur 2005). The United States independent agency model served as a blueprint in most cases. Despite these institutional similarities, there is one important difference: Latin American agencies operate within presidential systems that differ significantly from the US system. For example, the Brazilian President is substantially more powerful vis-à-vis the Brazilian Congress than is the White House vis-à-vis the American Congress. US literature uses the principal-agent framework to analyze regulatory agencies, showing that Congress...
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