Constitutional Rights Amparo (writ of protection)

Last updated 24 Oct 11

Latin American Law

Identify the country

A. The Justices of the Supreme Court do not fear an evaluation of their actions or behavior.

B. Constitutional amendment process by legislature and states is a “sovereign function” that cannot be questioned

C. Constitutional convention assures presidential re-election subject to power of chief of ministers and judicial council.

D. The President of the Republic may adopt provisional measures with the force of law and shall submit them to the National Congress immediately

Pop Quiz (1)

A

B

C

D

Erga omnes …(fundamental aspect of stare decisis)

Aggrandizes judiciary?Otero formula: compromise btn full-fledged, no judicial review

Robbie Samuel

Identify the country

A. 5 consecutive decisions (8/11 or 4/5 on Sup Ct / unanimous circuit)

B. 3 consecutive decisions (Sup Ct)

C. “Reiterated precedent” (Sup Ct)

D. Constitutional Chamber binding

Puerto Rico(1952)

Cuba(1976)

Costa Rica(1949)

Venezuela(1999)Colombia

(1991)Ecuador(1998)

Peru(1993)

Bolivia(1967)

Paraguay(1992)

Chile(1980)

Uruguay(1967)

Argentina(1994)

Brazil(1988)

Dominican Republic(2002)

Nicaragua(1987)

Panama(1972)

El Salvador(1983)

Mexico(1917)

Honduras(1982) “Case law”

Guatemala(1985)

Pop Quiz (2) C

B

A

D

Writ of protection …(amparo / tutela / proteccion)

“Pobre Mexico, tan lejos de Dios, tan cerca de los Estados Unidos.”

attributed to Porfirio Diaz

Hypothetical

Federal environmental law provides that costs (including attorneys fees) can be assessed against litigants and their lawyers who bring “spurious lawsuits” in federal court.

The NRDC, represented by Alan Dershowitz, sues the EPA for defining CO2 as a “non-pollutant.” The NRDC says that the EPA has not followed the mandates of the Clean Air Act.

The district judge hearing the case dismisses the complaint, and enters an order against the NRDC and Dershowitz to pay the government’s significant litigation costs.

How is judicial review handled in the United States? In Mexico?

Section 1983 claims

Robbie Samuel

Judicial review (US)

Circuitcourt

Supremecourt

discretionary

DistrictCourt

(2) OKs EPA decision(3) Orders party costs

Unconstitutional

Appealof right

Writ ofmandamus

Writ ofmandamus

Federal law(Congress)

Adm agency(1) EPA says not

regulate CO2

Executive(imprison)

Habeas corpus

APA (r/m)

Administrative acts (judge orders costs)• Challenge administrative of justice• Exhaust administrative remedies• Sue for writ in district court (w/ appeal)

Judicial review (Mexico)

Legislative acts (EPA definition of CO2)• Legality of regulation• Plaintiff must show actual injury• Sue for writ in district court (w/ appeal)

Adjudicative acts (judge dismisses case)• Challenge legality of final decision• Bring after appeals exhausted• Sue for writ in circuit court (no appeal,

unless “important and transcendent”)

Circuitcourt

Supremecourt

important + transcendent

District Court(ordinary court)

StatutesTreatiesDecrees

appeal

Writ of protection(Mexico)

Is this justice? Sam Wellborn

Mexican judges … exercise their discretion in applying the law to a case, and are not

hampered by precedent..

Historically, Mexico’s judicial branch has been much weaker than the legislative and

especially the executive branch

Sam Wellborn(compare autocracy and legal systems)

Mexican Sugar Workers Unionv. Hernandez Rivera

(Mex Sup Ct 2001)

What is real issuewith exclusionary clause?

Mexican Constitution (1917)

Article 4. No person can be prevented from engaging in any lawful … occupation. The exercise of this liberty shall only be forbidden by judicial order when the rights of third parties are infringed,

Article 5. A labor contract … in no case may embrace the waiver, loss, or restriction of any civil or political right.

Article 9. The right to assemble or associate peaceably for any lawful purpose cannot be restricted ….

Article 123(A)(XVI) Both employers and workers shall have the right to organize for the defense of their respective interests, by forming unions, professional associations, etc.

* * *

Article 14. In civil suits the final judgment shall be according to the letter or the juridical interpretation of the law; in the absence of the latter it shall be based on the general principles of law.

Substance of opinion

Federal Labor Act blatantly infringes on unionization and association liberties.

Constitutional supremacy precludes absurd conclusion that employees exercising their constitutional right may lose their jobs pursuant to inferior law.

The arrangement under consideration leads to “co-opted unions” and to a leadership that focuses on its own instead of the workers interests.

Mariano Azuela Guitron(Mexican Supreme Court)

Policy implications?Union corruption?

Structure of the opinion

(1)issue not stated until Section V of “Considerations” (the sixth page of the abridged opinion), and not stated in specific detail until the tenth page

(2)over four paragraphs are devoted to legal scholarship and its relevance, and before any discussion of actual, binding Supreme Court precedent

(3)Opinion explains in detail the maze for identifying precedent—the five-in-a-row rule—only to conclude that there is no exact, applicable precedent.

[student]

(trustworthy?)

Mariano Azuela Guitron(Mexican Supreme Court)

Distinguish “jurisprudential thesis” and “discrete thesis”

• Thesis 64 /2001: Appellate review of direct protection suits: (1) timely, (2) constitutional issue, (3) important and transcendent. Exceptional or extraordinary arguments; outstanding impact on constitutional doctrine.

• Thesis 59/2001: Federal Labor act, which permits exclusionary clauses in union contracts, impinges on Constitution article 5, 9, 123.

[student]

Code of Justinian forbids reference to previous decisions, especially those with which the deciding judge disagrees.

Code warns against perpetuity granted to wrong decisions by judges who value stare decisis: “judgment is to be given not according to precedents, but according to law.”

End