Latin American Law

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

2. Convergence …

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

4. 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

5. Stages in US civil litigation

6. 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.

7. 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)

8. Compare arbitration … • Conduct of proceedings - hearings • Attorney-client relationship • Evidence – witnesses / depositions • Law – basis for decision • Decision – appeal /precedent Sam Wellborn

9. Why is common law “inductive” and civil law “deductive”? Sam Wellborn

10. 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

11. What is public law …Differences in constitutionalism … Winslow Taylor

12. Enlightenment

13. Enlightenment Constitutionalism

14. Enlightenment Judicial review Constitutionalism

15. Enlightenment Judicial review Constitutionalism Constitutional courts

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

17. Taryn Kadar

20. End

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