Latin American Law

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Latin American Law. Elements > Civil Procedure > Public Law. Last updated 21 Sep 11. Convergence . Lex Mundi Project (1) Landlord evicts non-paying tenant (2) Creditor collects bounced check. Formalism. Sir William Blackstone. Quality of justice. Napolen Bonaparte. Legal origins. - PowerPoint PPT Presentation

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  • Latin American LawLast updated 21 Sep 11Elements > Civil Procedure > Public Law

  • Convergence

  • Lex Mundi Project(1) Landlord evicts non-paying tenant(2) Creditor collects bounced checkFriedrich Karl von Savigny Napolen Bonaparte Sir William BlackstoneFormalismQuality of justiceLegal origins

  • Compare civil procedures Issues facts / lawInformation party discovery / investigationWitness public / privateEvidence oral / writtenDecision jury / judgeAppeal legal error / de novoWinslow TaylorTaryn Kadar

  • Stages in US civil litigation

    Pleadings

    Complaint (joinder / individual or class action)Answer (admit, deny, lack info / counterclaim, cross-claim)Liberal notice pleading and amendments

    Filters Default judgment Motion to dismiss (so what)Rule11 sanctionsDiscovery

    DepositionsInterrogatoriesDocumentsExaminations (phys / mental)Admissions

    FiltersProtections (privileges, WP, order)Discovery conferenceCompel discovery / sanctionsPre-trial

    Settlement conferenceADR: mediation / arbitrationPre-trial conference

    FiltersSummary judgment (trial on papers) Voluntary dismissal (settle)Trial

    Jury / benchContinuous: live witness / exhibits Rules of evidenceLawyer arguments

    FiltersDV (J as MOL)Jury instructions Post-trial

    Judgment: $, injunc, decl Costs: court, atty fees Reopen case before appealAppeal of law (on record)

    Filters JNOVNew trial (mistakes, new E)Appeal: affirm, reverse, remand

  • French Code of Civil Procedure (1972)

    CHAPTER I - GUIDING PRINCIPLES FOR TRIALI PROCEEDINGS (Articles 1 to 3)II THE SUBJECT MATTER OF A DISPUTE (Articles 4 to 5)III THE FACTS (Articles 6 to 8)IV EVIDENCE (Articles 9 to 11)V THE LAW (Articles 12 to 13)VI THE ADVERSARY PROCEDURE (Articles 14 to 17)VII THE CONTENTION (Articles 18 to 20)VIII SETTLEMENT (Article 21)IX ORAL ARGUMENTS (Articles 22 to 23)X DUTY OF COURTESY (Article 24)Article 9It shall be incumbent on each party to prove in accordance with the law the constituent facts in view of the success of his claim.Article 10A judge may exercise such powers ex proprio motu in the giving of such directions as shall be legally appropriate.Article 11Parties shall be held to assist in the implementation of directions, save that the judge may draw such conclusions from the abstention or refusal of a party in relation to the same.

  • Legal fees Honor Daumier My dear Sir, it is impossible for me to plead your case. The most important pieces are missing: money. (1840)Sam Wellborn (Hague Convention on Civil Procedure)

  • Compare arbitration Conduct of proceedings - hearingsAttorney-client relationshipEvidence witnesses / depositionsLaw basis for decisionDecision appeal /precedentSam Wellborn

  • Why is common law inductive and civil law deductive?Sam Wellborn

  • The principal characteristic of the common law is the inductive process -- generalizing from common points between distinct cases and then establishing legal categories.

    Defining characteristic of the civil law tradition is its conceptualism emphasis on abstract concepts and deductive approach to legal reasoning, proceeding from the general to the specific.The Honourable Mr. Justice Michel Bastarache, Supreme Court of Canada

  • What is public law

    Differences in constitutionalism Winslow Taylor

  • Enlightenment

  • ConstitutionalismEnlightenment

  • ConstitutionalismEnlightenmentJudicial review

  • ConstitutionalismEnlightenmentJudicial reviewConstitutionalcourts

  • Constitutional courtsTrial courtAppeals courtTrial courtTrial courtAppeals courtSupreme courtConstitutionalcourtPoliticalbodiesIndividualsreferencereferencereference

  • Taryn Kadar

    Constitutional reviewFranceGermanyUSCourtSpecial (Const Council)Special (Const Court)US (federal)Supreme CourtCompositionFormer pres, legis heads, 9-yr appointeesAppointees (ord judges, for term)Appointees (for life)StandingPresident, PM, legislature (heads, 60%)States, fed govt, 1/3 Bundestag + individualsStates, Injured partiesTimingBefore enactmentAfter enactment (S/L)After enactmentReferenceNoneFrom courts(when in doubt)Appeal(lower courts can decide const)DecisionNo dissentMajorityMajority (dissents)

  • Constitutional reviewFranceGermanyUSCourtSpecial (Const Council)Special (Const Court)US (federal)Supreme CourtCompositionFormer pres, legis heads, 9-yr appointeesAppointees (ord judges, for term)Appointees (for life)StandingPresident, PM, legislature (heads, 60%)States, fed govt, 1/3 Bundestag + individualsStates, Injured partiesTimingBefore enactmentAfter enactment (S/L)After enactmentReferenceNoneFrom courts(when in doubt)Appeal(lower courts can decide const)DecisionNo dissentMajorityMajority (dissents)

  • Constitutional reviewFranceGermanyUSCourtSpecial (Const Council)Special (Const Court)US (federal)Supreme CourtCompositionFormer pres, legis heads, 9-yr appointeesAppointees (ord judges, for term)Appointees (for life)StandingPresident, PM, legislature (heads, 60%)States, fed govt, 1/3 Bundestag + individualsStates, Injured partiesTimingBefore enactmentAfter enactment (S/L)After enactmentReferenceNoneFrom courts(when in doubt)Appeal(lower courts can decide const)DecisionNo dissentMajorityMajority (dissents)

  • End

  • Poors access to justice in LatAm

    InformationCosts Corruption FormalismFear and mistrustCourt delaysGeographic causes

    **Law firms from 109 countries respondto questionnaires Describe claims (eviction and check collection)Characteristics of parties and merit of positionsNot reading of laws / actual practice

    Measure formalismAccess: need for lawyers, formalities to bringEase: oral vs. written proceduresLegalism: need for justificationsInformation: regulation of evidenceSuperior reviewCount # procedural stepsMeasure quality of judicial systemDuration of proceedingFairness, consistency, honesty (survey small firms)Identify types of courts (transplanted legal systems)

    Findings (formalism):Legal origins explains 40% of formalismFormalism prevalent in civil law countriesFormalism greater in less developed vs. richer countriesFindings (judicial quality):Formalism predicts duration of eviction, check collectionFormalism correlated to less access, higher judicial inefficiency, higher corruption, less fairnessTrue even when holding per capita income constant

    **Role of judgeCommon law: referee (jury finds truth)Civil law: inquisitor (manages / finds truth)

    ComplaintCommon law: sets forth plain, simple statement showing entitled to reliefCivil law: statement of law, that facts will later fit

    *Civil lawRight to compensationTraditionally gratuitousAvocat: by agreement, quantum meruitAvoue: fee scheduleContingent fees (civil law)Traditionally illegal and unethicalSupplemental percent payment permitted

    Common lawRight to compensationTraditionally by agreementNo fee schedule for civil casesCourt appointment in criminal casesContingent feesCommon law prohibitsUK: 1990 Act permits up to 25% damagesUS: state bar rules permit, regulate

    **http://justice.gc.ca/en/dept/pub/hfl/fasc1/fascicule_1g.html*Roman law (Ulpian): quod ad statum rei Romanae spectat (that which refers to the condition of the Roman state) Ad singulorum utilitatem (private interests of individual) focus of Justinian Digest, InstitutesExpanded as jurists move throughout Europelegislation, public officials, procedure, tax, public duties Become dependent on sovereignNational constitutional law / administrative lawConstitutional republicsSocial legislation and specialized courts

    Public law in EnglandPublic authorities subject to common law jurisdiction Habeas corpus, mandamusTort actions against public figuresReview of administrative actsNo ConstitutionOmnipotence of ParliamentSeparation of powers: no judicial review

    *ITALY The Court is limited to accepting or rejecting a claim that a legislative statute is unconstitutional, and often this involves political implications.[1] If the court decides to accept the claim and strikes down the statute as unconstitutional, the effect is enormous the decision is retroactive and erga omnes (applies to all), meaning the statute will be effectively eliminated.[2] However, if the claim is rejected and the statute is upheld as constitutional, the opinion has almost the opposite effect the decision is limited to the parties involved and the rationale is non-binding (but may be influential).[3] Because of the vast disparity in result between holding a statute unconstitutional and rejecting a claim of unconstitutionality, the Court has devised ways to mediate the outcome.[4] These techniques include: 1) statutory interpretation, 2) additive decisions, and 3) temporary constitutionality.[5] Statutory interpretation simply means that when there are a variety of potential interpretations, the Court will forbid only the unconstitutional interpretation.[6] This is very similar to the U.S. Supreme Courts doctrine of constitutional avoidance, which reflects that if there are two possible statutory interpretations, one which will likely raise constitutional problems and another which is a fairly possible interpretation, the Court should choose the latter.[7] The second technique, additive decisions, refers to when the Court adds a new provision or a necessary element to preserve the statute in the case of an accidental omission by Parliament.[8] The third, temporary constitutionality measure occurs when the Court either makes a recommendation or suggests the legislature take action to fulfill the requirements of the Constitution.[9] *Germany. From 1957 to 2002, 135,968 constitutional complaints were filed with only an approximate 2.5% success rate. Abstract Regulation Cont