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. Napoleón Bonaparte. Legal origins. - PowerPoint PPT PresentationTRANSCRIPT
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 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 …
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
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
Constitutional courts
Trial court
Appeals court
Trial courtTrial court
Appeals court
Supreme court Constitutionalcourt
Politicalbodies
Individuals
reference
reference
reference
Constitutional review
France Germany US
CourtSpecial
(Const Council)Special
(Const Court)US (federal)
Supreme Court
CompositionFormer pres, legis
heads, 9-yr appointees
Appointees(ord judges,
for term)
Appointees
(for life)
StandingPresident, PM,
legislature (heads, 60%)
States, fed govt, 1/3 Bundestag + individuals
States,
Injured parties
Timing Before enactmentAfter enactment
(S/L)After enactment
Reference NoneFrom courts
(when in doubt)
Appeal
(lower courts can decide const)
Decision No dissent Majority Majority (dissents)
Taryn Kadar
Constitutional review
France Germany US
CourtSpecial
(Const Council)Special
(Const Court)US (federal)
Supreme Court
CompositionFormer pres, legis
heads, 9-yr appointees
Appointees(ord judges,
for term)
Appointees
(for life)
StandingPresident, PM,
legislature (heads, 60%)
States, fed govt, 1/3 Bundestag + individuals
States,
Injured parties
Timing Before enactmentAfter enactment
(S/L)After enactment
Reference NoneFrom courts
(when in doubt)
Appeal
(lower courts can decide const)
Decision No dissent Majority Majority (dissents)
Constitutional review
France Germany US
CourtSpecial
(Const Council)Special
(Const Court)US (federal)
Supreme Court
CompositionFormer pres, legis
heads, 9-yr appointees
Appointees(ord judges,
for term)
Appointees
(for life)
StandingPresident, PM,
legislature (heads, 60%)
States, fed govt, 1/3 Bundestag + individuals
States,
Injured parties
Timing Before enactmentAfter enactment
(S/L)After enactment
Reference NoneFrom courts
(when in doubt)
Appeal
(lower courts can decide const)
Decision No dissent Majority Majority (dissents)