Mariana Mota Prado
Historically, rule of law has not been one of the central or explicit preoccupations of traditional economic analysis of the law (also known as ‘Law & Economics’). Those scholars who have engaged with the topic had to address three challenges: defining the rule of law; assessing the role that the rule of law plays in influencing human behaviour, and thus impacting economic outcomes; and measuring these outcomes. As illustrated in this chapter, the responses to these challenges vary significantly, and sometimes have little overlap with each other. Nevertheless, one common theme emerges from all of these analyses: the concern with whether and how law more generally, and the rule of law in particular, promotes economic development. Thus, the analysis of the rule of law from a ‘Law & Economics’ perspective blurs the lines between economic analysis of the law and the development literature in general and new institutional economics in particular.
Mariana Mota Prado
In my earlier contribution to this volume (Prado 2010), I argued for a ‘theory of presidential dominance’ to describe the interaction between the government and the regulatory agencies in Brazil. This theory stands in contrast to the ‘theory of congressional dominance,’ which is used by some American scholars to describe the relationship between independent regulatory agencies (IRAs) and the government in the United States. This chapter builds on this earlier contribution to show that, on the descriptive front, there is now empirical evidence to support my hypothesis of ‘presidential dominance.’ Data shows that presidential interference has increased and the independence of regulatory agencies has fallen over time in Brazil (Silva 2011). The first two parts of this chapter asks how and why this has happened. In the third part of this chapter, I turn to the normative question: who should control regulatory agencies? In answering these descriptive and normative questions, I try to argue that there may be reasons to embrace the idea of ‘varieties of regulatory state.’ In line with Dubash and Morgan (2012), I conclude that although scholarship analyzing ‘the regulatory state’ in the global south may be enriched by theories generated in the global north, it also needs to make a conscious effort to be more grounded in the unique political, legal and social circumstances in which these IRAs operate.