What Factors Influence Judicial Decisions on Regulatory Matters in Brazil?

Judicial review of administrative rulings on regulatory matters is a frequent possibility in Western democracies and the relationship between agencies and courts is often marked by alignment, conflicts, and disputes of authority. Understanding how these players interact with each other in the regulatory process in environments marked by evolving institutional designs can contribute to a better understanding of how the Regulatory State functions. The increasing number of legal documents that are digitally available by courts present unique opportunities for studying the judicialisation of regulatory matters and other policies with a high impact on citizens' daily life. Decentred approaches to regulation – which emphasise fragmentation and interdependence – have long recognised the polycentric nature of agency relations. Recent discussions on the concept of regulatory space (Hancher & Moran, 1989) have been based on reflections on contemporary systems of authority (from the perspective of the exercise of power seen as legitimate) in the performance of regulatory activity. This perspective emphasizes the importance of looking at the regulatory activity from different angles and domains of authority, among which that of the law in its relationship with technical regulatory bodies. Reflections brought about by the Economic Analysis of Law and by the comparative institutional analysis theory (Komesar, 1997) also highlight the plural nature of administrative and judicial regulatory proceedings – which are marked by imperfect decision-making choices and complex technical disputes. This study therefore sets out to discuss theoretical lenses that have been little incorporated in the interpretation of institutional tensions in regulatory governance as well as performs a empirical research on judicial reviews appeals against administrative decisions issued by regulatory agencies in Brazil (National Health Regulatory Agency; National Telecommunication Agency; National Oil Agency; National Electricity Agency; and National Civil Aviation Agency). Using a quantitative approach, the article seeks to investigate factors and constraints that explain judicial deference. Conflicts between technical-administrative and legal rationalities can be explored through research into factors and contexts that maximize or minimize divergences in regulatory interpretation in the institutional-legal environment (e.g. type of plaintiff, amount of the claim, length of the lawsuit, economic sector). Depending on the context, the above-listed variables may suggest self-restraint or greater protagonism on the part of courts, so it is necessary to check and refine the influence of these and other variables. The research is based on data and text mining techniques that gathered judicial proceedings brought before two Brazilian federal appeal courts (Tribunal Regional Federal da 1ª Região and Tribunal Regional da 3ª Região) in the 2011-2019 period. The study seeks to contributes to a deeper understanding of the supervision performed by courts in regulatory matters in a developing country and with evolving institutional regulatory designs, since the bulk of the research on the topic is carried out in the United States and in Europe. The article also conducts a logit statistical model that may generate possible predictors of judicial deference in the Brazilian context or, on the other hand, lead the Judiciary to play a policy-making role in the context of regulation.