Brazil-United States Judicial Dialogue Created in June 2006 as part of the Wilson Center’s Latin American Program, the BRAZIL INSTITUTE strives to foster informed dialogue on key issues important to Brazilians and to the Brazilian-U.S. relationship. We work to promote detailed analysis of Brazil’s public policy and advance Washington’s understanding of contemporary Brazilian developments, mindful of the long history that binds the two most populous democracies in the Americas. The Institute honors this history and attempts to further bilateral coop- eration by promoting informed dialogue between these two diverse and vibrant multiracial societies. Our activities include: convening policy forums to stimulate nonpartisan reflection and debate on critical issues related to Brazil; promoting, sponsoring, and disseminating research; par- ticipating in the broader effort to inform Americans about Brazil through lectures and interviews given by its director; appointing leading Brazilian and Brazilianist academics, journalists, and policy makers as Wilson Center Public Policy Scholars; and maintaining a comprehensive website devoted to news, analysis, research, and reference materials on Brazil. Paulo Sotero, Director Michael Darden, Program Assistant Anna Carolina Cardenas, Program Assistant Woodrow Wilson International Center for Scholars One Woodrow Wilson Plaza 1300 Pennsylvania Avenue NW Washington, DC 20004-3027 www.wilsoncenter.org/brazil ISBN: 978-1-938027-38-3 Brazil-United States Judicial Dialogue May 11 – 13, 2011 Brazil-United States Judicial Dialogue Foreword ffirming the Rule of Law in a historically unequal and unjust Asociety has been a central challenge in Brazil since the reinstate- ment of democracy in the mid-1980s. The evolving structure, role and effectiveness of the country’s judicial system have been major factors in that effort. Most experts would agree that progress has been and continues to be made. Evidence of advancements can be found, for example, in the establishment of small claims courts and the creation a supervisory National Council of Justice. In addition, the successful implementation of an electronic voting system under the supervision of a specialized federal court as well as the historic trial of the largest political corruption scandal in Brazil’s history by the nation’s Supreme Federal Tribunal are further evidence that the rule of law is taking root. An important ingredient of the continuous process of judicial reform in Brazil has been the openness of judges, prosecutors and legal scholars to exchange experiences with colleagues from abroad. Particularly relevant in that context have been interactions between Brazil and American judges and members of academia. In the spring of 2011 the Brazil Institute of the Wilson Center and the Law Library of the United States Library of Congress organized a high level conference consisting of experts from America’s two largest democracies in a comparative examination of their respective judicial systems. The Georgetown University Law Center participated as an institutional co-sponsor. Four members of the Brazilian Supreme Federal Tribunal came to Washington to exchange l iil Brazil-United States Judicial Dialogue experiences and views with American judges and legal scholars through a Brazil-United States Judicial Dialogue. The delegation was led by the Court’s President at the time, Minister Cesar Peluzo. He was joined by Minister Ellen Gracie Northfleet, the first woman to sit on Brazil’s highest court and a Former President of the Court, Minister Gilmar Mendes, also a former President of the Court, and Minister Ricardo Lewandoswki, who will be elevated to the presi- dency of the Federal Supreme Tribunal in April 2014 for a period of two years. The main event – a day and a half academic seminar - took place in the Member’s Room of the Library of Congress’ Thomas Jefferson Building. Participants made presentations and engaged in dialogue on topics ranging from controlling constitutionality and the process of judicial review to the challenges of administering courts. They also examined questions related to legitimacy, transparency and judicial security in decisions of the highest courts of Brazil and the U.S. and explored potential areas of collaboration on electoral justice. With Brazil’s Supreme Federal Tribunal about to hold an unprece- dented trial of vote buying in Congress [NOTE: In Brazil, the trial would actually be conducted by the STF], participating judges and scholars compared notes on the prosecution of politicians indicted of crimes of political corruption in both countries. An inaugural dinner offered by Brazil’s Ambassador to the United States, Mauro Vieira, at his official residence, brought together the Chief Justice of the United States Supreme Court, John Roberts, and his Brazilian counterpart, Cesar Peluzo. The Brazil-United States Judicial Dialogue of 2011 grew out of the pioneering work launched in the late 1990s by U.S. District Court Judge Peter J. Messitte, of the District of Maryland, which also brought together the judicial experiences of Brazil and the United States. A Peace Corps Volunteer in São Paulo in the 1960s, who has remained in close contact with Brazil since his time in Brazil, Judge l iiil Brazil-United States Judicial Dialogue Messitte organized the first exchanges in 1998, with support from the World Bank and the United States Agency for International Devel- opment. Two conferences were held under the 1998 Brazil-United States Law Initiative, the first in Baltimore and Washington, in July, and the second in Brasilia and Rio de Janeiro, in December. The present volume brings together fifteen contributions offered by the participants in the Brazil-United States Judicial Dialogue of May 2011. The texts are displayed in seven thematic chapters, according to the order in which they were presented, following the transcripts of remarks offered at the opening session by the Librarian of Congress James Billington, the President and Director of the Wilson Center Jane Harman, the Dean of the Georgetown Law Center William Treanor, and the then Law Librarian of Congress Roberta Shaffer. The topics covered include Constitutions, Fundamental Rights and Democracy - Role of Supreme Courts in the Western Hemisphere’s Two Largest Democracies; Controlling Constitutionality and the Process of Judicial Review - Legitimacy, Transparency and Judicial Security in Supreme Court Decisions; Challenges of Court Admin- istration; Role of Alternative Dispute Resolution: Conciliation and Mediation in Brazilian and American Law; Due Process of Law, Constitutional Guarantees and Appeals; Electoral Justice and Democracy - Potential Areas for Bilateral Cooperation; and Prosecuting and Trying Political Corruption Cases. The Embassy of Brazil in Washington, D.C. and the Georgetown Law Center were fully supportive of the Dialogue, as were four Brazilian and American law firms which co-sponsored the Dialogue: Mattos Filho Veiga Filho Marrey Jr. & Quiroga Advogados; Mattos Muriel Kestener Advogados; Boies, Schiller & Flexner LLP; and Arnold and Porter LLP. The Initiative owes much to the efforts of Dr. João Batista Nasci- mento Magalhães, a diplomat who was, at the time, Adviser for l ivl Brazil-United States Judicial Dialogue International Affairs to the Brazilian Supreme Federal Tribunal; Rob- ert R. Newlen, Assistant Law Librarian of Congress for collections, outreach and services; Michael Darden, Brazil Institute Program Assistant; and Anna Carolina Cardenas, Brazil Institute Program Intern who contributed to this report. To them, and to participants and sponsors, our deepest gratitude. Paulo Sotero Director, Brazil Institute l v l Brazil-United States Judicial Dialogue Table of Contents Opening Remarks .................................................................1 Roberta Shaffer, Law Librarian of Congress ..................................1 Mauro Vieira, Ambassador of Brazil to the United States ...........2 James Billington, Librarian of Congress .........................................3 Jane Harman, Director, President and CEO, Woodrow Wilson International Center for Scholars.....................4 William Treanor, Dean, Georgetown University Law Center .....8 Constitution, Fundamental Rights and Democracy. The Role of Supreme Courts in the Western Hemisphere’s Two Largest Democracies .........................10 Cezar Peluso, President, Supreme Federal Tribunal of Brazil ...10 Diane Wood, Chief Judge, United States Court of Appeals for the Seventh Circuit ..........................................................................20 Controlling Constitutionality and the Process of Judicial Review. Legitimacy, Transparency and Judicial Security in Supreme Court Decisions ..............................................34 Gilmar Mendes, Minister, Supreme Federal Tribunal of Brazil ...34 Jeffrey Minear, Counselor to Chief Justice, Supreme Court of the United Stats ...........................................................................45 The Challenges of Court Administration ..........................54 James Duff, Director, Administrative Office of the United States Courts ...........................................................................................54 l vil Brazil-United States Judicial Dialogue Role of Alternative Dispute Resolution: Conciliation and Mediation in Brazilian and American Law.................60 Morgana Richa, Minister, National Council of Justice of Brazil ................................................................................60