Choosing Judges in Brazil: Reassessing Legal Transplants from the U.S.

38 Pages Posted: 19 Jan 2011

See all articles by Maria Angela Jardim de Santa Cruz Oliveira

Maria Angela Jardim de Santa Cruz Oliveira

Graduate Institute of International and Development Studies (IHEID)

Nuno Garoupa

George Mason University - Antonin Scalia Law School, Faculty

Date Written: January 12, 2011

Abstract

This paper compares the Brazilian method with the United States general procedures of judicial selection at both state and federal levels. The most significant difference between judicial selections in both countries is that, at the lower level, the process is entirely administered by the judiciary in Brazil. Contrastingly, at the Supreme Court level, the Brazilian Constitution uses the same mechanism established by the United States, namely presidential nomination and Senate confirmation. This paper underlines that the constitutional transplant of the U.S. model of judicial selection at the Supreme Court level has produced a distinct balance of power between different branches of government in Brazil. We provide possible explanations for why apparently identical legal institutions have evolved in different ways, in particular focusing on the distinct role the Senate has developed in confirming presidential nominees.

Suggested Citation

Oliveira, Maria Angela Jardim de Santa Cruz and Garoupa, Nuno, Choosing Judges in Brazil: Reassessing Legal Transplants from the U.S. (January 12, 2011). American Journal of Comparative Law, Vol. 59, No. 2, 2011; Illinois Program in Law, Behavior and Social Science Paper No. LBSS11-04. Available at SSRN: https://ssrn.com/abstract=1739226

Maria Angela Jardim de Santa Cruz Oliveira

Graduate Institute of International and Development Studies (IHEID) ( email )

PO Box 136
Geneva, CH-1211
Switzerland

Nuno Garoupa (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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