Mariana Mota Prado

Path Dependence, Development, and the Dynamics of Institutional Reform

In the past decade, an institutional perspective on development has become increasingly prominent in development thinking. However, the reform experience thus far suggests that if institutions indeed matter for development, we still do not have a firm understanding of how to transforms dysfunctional institutions. Drawing on concrete examples of rule of law and property rights reforms, we argue that path dependence theory can shed some light on past failures and provide guidance for future reforms.

Police Reform in Violent Democracies in Latin America

The central question of this paper is what kind of reforms are necessary to guarantee that Latin American police forces meet what Bayley calls ‘the democratic criteria’: 1) police are accountable to law, not to government; 2) police protect human rights, including those related to democratic participation; 3) there are constraints on the use of police force that are enforced by institutions external to the police force; 4) the police force’s priority is the protection of citizens as individuals and private groups, not the state. The primary focus of this paper is to discuss the types of reforms that ensure that a police force is abiding by the most fundamental principles of the rule of law under a democratic regime. We recognize that in some cases the two problems are so entangled that it is not possible to discuss police reform without addressing effective ways to reduce crime. However, as we argue in the paper, this is not always the case. In many countries it seems possible to separate the two.

What Makes Poor Countries Poor

This important book focuses on the idea that institutions matter for development, asking what lessons we have learned from past reform efforts, and what role lawyers can play in this field.

Advanced introduction to law and development

Contents: Introduction PART I conceptual foundations 1. Defining Development 2. Determinants of Development 3. Institutional Theories of Development PART II The Rule of Law and Development 4. The Rule of Law and Development: A Legal Perspective 5. The Rule of Law: An Economic Perspective PART III Politics, Identity and Development 6. Political Regimes and Development 7. Ethnic Conflict and Development 8. Gender and Development PART IV The State, The Market and Development 9. Public Administration and Development 10. Corruption and Development 11. State-owned Enterprises, Privatization and Public-private Partnership PART V International Economic Relations, Law and Development 12 International Trade 13. Foreign Direct Investment 14. Foreign Aid 15. Conclusion Index

Institutional Bypass: An Alternative for Development Reform

Beginning in the 1990s, an institutional perspective on development has become increasingly prominent in development thinking, captured in the mantra, “Institutions Matter,” or “Governance Matters.” Based on the assumption that “institutions matter”, there has been a massive surge in development assistance for institutional reform projects in developing and transition economies involving investments of many billions of dollars. However, these reforms have had mixed to disappointing results thus far. Against this backdrop, this paper identifies successful institutional reforms, and claims that they have one common feature: instead of trying to fix dysfunctional institutions, as most failed reforms do, they simply bypass them. For this reason, they will be called “institutional bypasses”. Like a “coronary bypass” surgery, an institutional bypass creates new pathways around clogged or blocked institutions. Institutional bypass uses the same strategy: it does not try to modify, change or reform existing institutions. Instead, it tries to create a new pathway in which efficiency and functionality will be the norm. Understanding what is a bypass and how it works can provide answers to an important question in the law and development literature: how to reform dysfunctional institutions. This paper argues that under certain circumstances an “institutional bypass” presents a promising alternative for institutional reforms in developing countries, but at the same time it should not be regarded as a panacea for development problems.

Policing following political and social transitions: Russia, Brazil, and China compared

This is a comparative analysis of policing in three countries that have experienced a major political or social transition, Russia, Brazil, and China. We consider two related questions: (1) how has transition in each country affected the deployment of the police against regime opponents (which we term “repression”)? And (2) how has the transition affected other police misconduct that also victimizes citizens but is not directly ordered by the regime (“abuse”)? As expected, authoritarian regimes are more likely to perpetrate severe repression. However, the most repressive authoritarian regimes such as China may also contain oversight institutions that limit police abuse. We also assess the relative importance of both transitional outcomes and processes in post-transition policing evolution, arguing that the “abusiveness” of contemporary Brazilian police reflects the failure to create oversight mechanisms during the transition, and that the increasing “repressiveness” of Chinese police reflects a conscious effort by the Chinese Communist Party to reinforce the police in an era of economic liberalization. In contrast, Russian police are both significantly abusive and repressive, although less systematically “repressive” than Chinese police, and less “abusive” (or at least violent) than Brazilian police. Also, abuse and repression are less distinct in Russia than in the other cases. These results reflect the initial processes of decay and fragmentation, and subsequent partial recovery and recentralization, which Russian police have experienced since the Soviet collapse.

The Debatable Role of Courts in Brazil's Health Care System: Does Litigation Harm or Help?

Recent studies of the Brazilian case suggest that successful litigation can have regressive effects and negatively impact the health care system. While the data to support this claim is not conclusive, this paper assumes that such immediate regressive effects are indeed taking place, but asks if these are the only consequences that should be analyzed in assessing the impact of right to health litigation in Brazil. The answer is no. The current perspective adopted to assess right to health litigation in Brazil is too narrow. Other consequences can and should be considered in analyzing the overall impact of litigation. To go beyond the set of questions asked by the existing experts on the topic, this paper analyzes whether the right to health litigation in Brazil has the potential, and could be generating: (i) policy changes within the health care system; (ii) institutional changes within the health care system; and (iii) institutional changes outside the health care system. After presenting anecdotal evidence that suggests these three types of changes may be happening in Brazil, I conclude the paper by discussing what would be required to assess them, and how these changes may affect our overall assessment of the more immediate and supposedly negative impact that litigation has had on the system.

The paradox of rule of law reforms: How early reforms can create obstacles to future ones

In their most recent book, Rule of Law Reform and Development: Charting the Fragile Path of Progress, Michael Trebilcock and Ron Daniels show how rule of law reforms have a mixed - not to say disappointing - track record of successes. Their diagnosis is that social-historical-cultural factors and resistance from interest groups are two of the main obstacles to reform. This essay explores these two obstacles in greater depth. With respect to social-historical-cultural factors, my main argument is that early rule of law reforms can create values, practices, and attitudes that may become impediments to future reforms. On the political economy front, these early reforms can strengthen interest groups that will block future reforms. As a consequence, policy makers face a paradox: robust rule of law reforms early on may undermine broader reform efforts by reducing the possibility of other necessary reforms down the road, creating a reform trap. I illustrate the paradox with a Brazilian case study and discuss possible strategies to address this challenge.

Brazilian Anti-Corruption Legislation and Its Enforcement: Potential Lessons for Institutional Design

This paper examines the reforms and institutions that have, anecdotally and empirically, demonstrated progress in combating corruption in Brazil. Focusing specifically on the institutions charged with investigating suspected corrupt activities, we contend that institutional multiplicity – the overlap of investigative functions among various governmental entities – has strengthened outcomes by allowing institutions to collaborate, to complement one another, or to compensate for one another’s deficiencies or oversights. We further argue that our analysis of the Brazilian experience reveals the advantages in pursuing alternative institutional approaches, including institutional multiplicity combined with institutional malleability, in developing strategies to reduce corruption.

The past and future of law and development

In this focus feature, David Trubek and Michael Trebilcock present an assessment of the past forty years of the law and development movement and map the challenges that lie ahead. While law and development research today seems to be on more solid ground than it was in the late 1960s and early 1970s, it is still at risk of facing a second demise. The recent revival of the law and development movement has been marked by a research agenda increasingly attuned to the importance of local context. On the one hand, contextualization has countered the ethnocentric analysis produced in the Global North and exported to developing countries in the 1960s. On the other hand, attention to context has caused a severe fragmentation of the academic dialogue, as the concern with adaptation to particular circumstances defies any attempt to somehow connect these research efforts in one single conceptual framework. The new generation of law and development scholars is thus left with the challenge of maintaining contextualization, while avoiding letting the movement break down into a ‘series of self-referential silos.’