Law and Economics in the Civil Law World: The Case of Brazilian Courts

Tulane Law Review, v. 90, p. 430-470, 2015

FGV Direito SP Research Paper Series No. 117

32 Pages Posted: 20 Mar 2015 Last revised: 6 Jun 2017

See all articles by Mariana Pargendler

Mariana Pargendler

Fundação Getulio Vargas Law School at São Paulo; New York University School of Law; European Corporate Governance Institute

Bruno M. Salama

Fundação Getulio Vargas Law School at São Paulo

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Date Written: 2015

Abstract

Conventional wisdom holds that economic analysis of law is either embryonic or nonexistent outside of the United States generally, and in civil law jurisdictions in particular. Existing explanations for the assumed lack of interest in the application of economic reasoning to legal problems range from the different structure of legal education and academia outside of the United States to the peculiar characteristics of civilian legal systems. This Article challenges this view by documenting and explaining the growing use of economic reasoning by Brazilian courts. We suggest that the rise of economic reasoning in Brazilian legal practice is driven not by a supply push from scholars, but by a demand pull due to ideological, political, and legal factors, leading to greater judicial empowerment in the formulation of public policy. Given the ever greater role of courts in policy making, the application of legal principles 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 of providing 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 by judicial demand.

Keywords: law and economics; comparative law; civil law; judicial empowerment; Brazil

Suggested Citation

Pargendler, Mariana and Salama, Bruno M., Law and Economics in the Civil Law World: The Case of Brazilian Courts (2015). Tulane Law Review, v. 90, p. 430-470, 2015 ; FGV Direito SP Research Paper Series No. 117. Available at SSRN: https://ssrn.com/abstract=2580490 or http://dx.doi.org/10.2139/ssrn.2580490

Mariana Pargendler (Contact Author)

Fundação Getulio Vargas Law School at São Paulo ( email )

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

European Corporate Governance Institute ( email )

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

Bruno M. Salama

Fundação Getulio Vargas Law School at São Paulo ( email )

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

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