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90 Tul. L. Rev. 439 (2015-2016)

handle is hein.journals/tulr90 and id is 469 raw text is: Law and Economics in the Civil Law World: The Case of Brazilian Courts Mariana Pargendler* Bruno Salamat Conventional wisdom holds that economic analysis of law is either embryonic or nonexistent outside of the United States generally, and in civil law julisdictions in paricaular Existing explanations for the assumed lack of interest in the apphcation of economic reasoning to legal problems range from the different structure of legal education and academia outside of the United States to the peculiar chamcteristics of civilian legal systems Tis Anicle challenges this view by documenting and explaining the growing use of economic reasoning by Brailian courts. We suggest that the rise of economic reasoning in Braniian legal practice is dnven not by a supply push from scholars, but by a demand pull due to ideological, political, and legal factors, leading togreaterjudicial empowernent in the formulation ofpublic policy Given the ever greater role of courts in policy making, the application of legal pinciples and rules increasingly calls for a theory of human behavior (such as that provided by economics) to help foresee the likely aggregate consequences of different interpretations of the law Consistent with the traditional role of civilian legal scholarship ofprovidng guidance for the application of law by courts, the further development of law and economics in Brazil (as well as in other civil law jurisdictions) is therefore likely to be mostly driven byjudicial demand I. INTRODUCTION ............................................................................. 440 II. ECONOMIC REASONING IN COURT ............................................... 444 III. THE RISE OF ECONOMIC REASONING IN JUDICIAL ADJUDICATION: THE DRIVING FORCES ....................................... 448 A. The IdeologicalFactor. The Rise of Progressivism ......... 448 B. The Political Factor The Ascent of the ucciary ............ 451 C The LegalFactor. The Changing Structure ofLaw ......... 453 IV THE USE OF ECONOMICS BY BRAZiLIAN COURTS ....................... 456 A. The Application of Constitutional Principles ................... 457 B. Teleological or Purposive Interpretation ofStatutes ........ 463 © 2015 Mariana Pargendler and Bruno Salama. * Professor of Law, FundaqAo Getulio Vargas School of Law (FGV Direito SP); Global Associate Professor of Law, New York University School of Law. t Professor of Law, Fundagdo Getulio Vargas School of Law (FGV Direito SP). We are grateful to Diego Arguelhes, Richard Brooks, Owen Fiss, Nuno Garoupa, Martin Gelter, Bert Huang, Jed Kroncke, Jos& Reinaldo Lima Lopes, Ejan Mackaay, Rafael Maffei, Erickson Oliveira, participants in the faculty workshop at FGV Direito SP, the 2014 edition of Yale's Seminario en Latinoamrica de Teorfa Constitucional y Politica (SELA), and the 2015 edition of the CLS-FGV Global Alliance Workshop for very helpful comments to an earlier version of this Article. Alberto Barbosa Jr. provided research assistance. All errors are our own. 439

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