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

Convergence …

Lex Mundi Project (1) Landlord evicts non-paying tenant (2) Creditor collects bounced check Friedrich Karl von Savigny Napoleón Bonaparte Sir William Blackstone Formalism Quality of justice Legal origins

Compare civil procedures … Issues – facts / law Information – party discovery / investigation Witness – public / private Evidence – oral / written Decision – jury / judge Appeal – legal error / de novo Winslow Taylor Taryn 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 sanctions Discovery Depositions Interrogatories Documents Examinations (phys / mental) Admissions Filters –Protections (privileges, WP, order) –Discovery conference –Compel discovery / sanctions Pre-trial Settlement conference ADR: mediation / arbitration Pre-trial conference Filters –Summary judgment (“trial on papers”) –Voluntary dismissal (settle) Trial Jury / bench Continuous: live witness / exhibits Rules of evidence Lawyer arguments Filters –DV (J as MOL) –Jury instructions Post-trial Judgment: $, injunc, decl Costs: court, atty fees Reopen case before appeal Appeal of law (on record) Filters –JNOV –New trial (mistakes, new E) –Appeal: affirm, reverse, remand

French Code of Civil Procedure (1972) CHAPTER I - GUIDING PRINCIPLES FOR TRIAL I 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 9 It 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 10 A judge may exercise such powers ex proprio motu in the giving of such directions as shall be legally appropriate. Article 11 Parties 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 … Honoré 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 - hearings Attorney-client relationship Evidence – witnesses / depositions Law – basis for decision Decision – appeal /precedent Sam 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

Constitutionalism Enlightenment

Constitutionalism Enlightenment Judicial review

Constitutionalism Enlightenment Judicial review Constitutional courts

Constitutional courts Trial court Appeals court Trial court Appeals court Supreme court Constitutional court Political bodies Individuals reference

Constitutional review FranceGermanyUS Court Special (Const Council) Special (Const Court) US (federal) Supreme Court Composition Former pres, legis heads, 9-yr appointees Appointees (ord judges, for term) Appointees (for life) Standing President, PM, legislature (heads, 60%) States, fed govt, 1/3 Bundestag + individuals States, Injured parties Timing Before enactment After enactment (S/L) After enactment Reference None From courts (when in doubt) Appeal (lower courts can decide const) Decision No dissentMajorityMajority (dissents) Taryn Kadar

Constitutional review FranceGermanyUS Court Special (Const Council) Special (Const Court) US (federal) Supreme Court Composition Former pres, legis heads, 9-yr appointees Appointees (ord judges, for term) Appointees (for life) Standing President, PM, legislature (heads, 60%) States, fed govt, 1/3 Bundestag + individuals States, Injured parties Timing Before enactment After enactment (S/L) After enactment Reference None From courts (when in doubt) Appeal (lower courts can decide const) Decision No dissentMajorityMajority (dissents)

Constitutional review FranceGermanyUS Court Special (Const Council) Special (Const Court) US (federal) Supreme Court Composition Former pres, legis heads, 9-yr appointees Appointees (ord judges, for term) Appointees (for life) Standing President, PM, legislature (heads, 60%) States, fed govt, 1/3 Bundestag + individuals States, Injured parties Timing Before enactment After enactment (S/L) After enactment Reference None From courts (when in doubt) Appeal (lower courts can decide const) Decision No dissentMajorityMajority (dissents)

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Poor’s access to justice in LatAm –Information –Costs –Corruption –Formalism –Fear and mistrust –Court delays –Geographic causes