Berkeley Program in Law and Economics

The main objective of the 2002 constitutional reform to article 113 of CPEUM was to settle the bases of a State’s patrimonial responsibility system that would improve the quality of the Public Administration. However, nowadays that reform is practically dead letter. The Supreme Court of the Nation (SCJN) discussed in plenary sessions on January 28th, 29th and February 7th, 2008, the Judicial Review 4/2004 promoted by Deputies of the Third Legislature of the Assembly of Representatives. The Deputies denounced the invalidity of the articles 389, 391, 392 of the Financial Code of the Federal District, that regulate the objective responsibility of the authorities of the Federal District and the procedure to demand the repair of damages. The SCJN established in its resolution a new criterion for the interpretation of the patrimonial responsibility of the State stated in article 113 of the Constitution. The proposed criterion of interpretation indicates the scope of application of the patrimonial responsibility of the State in the country, and determines the minimum requirements to fulfill it. This interpretation generates different incentives on agents ruled by the norm. In order to analyze the new scheme, this paper uses the economic model of torts. The model is applied to each one of the rules of responsibility and the incentives they generate for the receiving agents of this standardization. Once studied these rules, and the incentives generated by them, we conclude that by establishing the standard regulated by the norms applied to the of public administration activity, the criterion of interpretation proposed by the SCJN establishes the bases to eliminate the perverse incentives previously generated by the rule of strict patrimonial responsibility. By this means the paper pretends to preset some considerations that may be helpful to get an effective and efficient system of State’s patrimonial responsibility in Mexico, with the porpoise that new or local legislations on the matter, could suitably regulate it in the light of the criteria seated by the Court.