i carry your heart with me it's not about being impressed; it's about being captivated...

CIVIL LAW SYSTEM - Latin America Siete Partida : first codification of Roman Law, 1348 (?). Applicable to entire Spanish empire; a comprehensive, gap-filler law. The Spanish "legally" justified conquering S.America's indigenous population thru divine right >> said God told the Spanish to rule the Indians: convert willingly or by force. Forces of discontent in the Americas: 1. Colonies separating from British Rule. 2. Latin America separating from Spanish rule. a) N.America seen as land to be settled; S.America seen as land to be looted. b) N.American indigenous seen as subordinates - no blood mixing; Spanish mixed with the indigenous of S.America. c) N.America wanted elected representative to rule - no king; S.America (1) Napolean separated Brazil from Portugal, (2) Spanish territories: juntas took over while Spanish king was in prison but simply to govern on his behalf and to fight the French - did not intend to take over. South American countries follow US Constitutional (public) law since gaining independence. But private law continues from Roman traditions. All countries of Latin America became independent in between 1810 and 1822. All Latin American countries have adopted a Presidential system of gov'nt [Executive, Legislative, and Judicial branches]: head of gov'nt & state, people granting power to gov'nt, *Constitution* voted & adopted by process unique from other statutes (not all Constitutions are written - some are oral). The Constitutions of Latin America are inspired by the US and the French - framework for gov'nt and guaranteed individual rights. Federalism is the states giving federal gov'nt only enumerated powers, but Latin American states never had any power which they could retain. In some countries: being a judge is a career - go straight from law school to the judicial bench. Judges have to explain their verdict. Prosecutor can appeal an acquital - no double jeopardy clause. There are no juries in civil law world (exceptions: such as Brazil in very serious crimes; Argentina in some circumstances). Stare decisis is not part of civil systems, because judges are not integral in law making. Rather, civil law is university law, constructed by legal scholars. It evolved from Roman law and focuses on rights (whereas common law focuses on remedies). Civil law systems give no remedy unless provided by statute. "Amparo" gives judges power to remedy a violation of a civil law, "restoration of the right immediately." All Latin American nations have a judicial system like the United States, but do not give S.Ct. power to invalidate unconstitutional claims - only make inapplicable to the particular case. However, Latin American courts do have the authority of abstract review (initiated by a party, not by the court), whereas the United States requires an actual "case or controversy." Note* some countries have recent rules with allow precedent to become binding under certain conditions - such as Mexico's 5x1 rule, which essentially says that if the same ruling is handed down by a super majority on five consecutive determinations, then it becomes binding precedent. DNU = decrees of necessity and urgency : President's rule-making power; hyper-Presidentialism. Most Latin American countries expressly provide this in their Constitutions today. Bill of Rights. 2nd & 3rd generation rights = obligations of gov'nt to provide (housing, education, etc.) [as opposed to US - which prevents gov'nt interference] Current distrust of gov'nt due to: centralization, bureaucracy, over-regulation, under-compliance. ARGENTINA Argentina gained independence in 1810. Their first Constitution was adopted in 1853, and the 1853/60 waw the fourth oldest Constitution in the world. The Olivos Agreement and the Rosada Accord were pre-constituent steps in reforming the Constitution; these are where the DNU's (decrees of necessity and urgency) came from, called for a legislative delegation, the Judicial Council was formulated, and voting restraints were imposed on the Constitutional Convention. In 1994 Argentina adopted their newest Constitution, which expressly empowers DNU's. Argentina binds itself to the International Human Rights tready and also to the International Court of Human Rights. Argentina holds international law as equal to the authority of its domestic Constitution, and if there is a conflict then the international treaties actually trump domestic law. 1976-83 was the last military coup/dictatorship in Argentina, and now trials concerning the many people taken during that time are being being brought to convict the military leaders responsible for the "disappeared" as they are called. President Menem gave pardons, amnesty to these military officials, but now those pardons are being revoked and President Kirchner calling for justice. These trials are the "juricio de la verdad." Amparo is granted in Art 43 of the 1994 Constitution, as well as detailed in a 1966 statute. Amparo is the action to protect a person's civil rights. Since the 1994 Constitution, judges can now declare the statute unconstitutional across the board (before they could only declare unconstitutionality as to the particular parties involved), now amparo applies against private action (before only applied against gov'nt action), and it protects not only constitutional rights but also those granted thru statutes and treaties. However, amparo still requires that all other avenues of remedy be exhausted before filing of an amparo action. The courts still hear amparo in January, which is the month of vacation for lawyers and courts are otherwise closed. Supreme Court Justices have the option of three oaths: (a) on the four gospels of the Bible, (b) to country and God {God being a generic term for whichever force is that Justice's greater power}, or (c) to country and honor. Counsel has 10 days to write and file their briefs for a case going before the S.Ct, and these briefs run an average of approximately 40 pages. S.Ct. case law transitioned into a new era along with the 1994 Constitution. Up to 1994, the Argentine S.Ct. frequently cited to United State's S.Ct. cases; after the new Constitution international law is more prominent than US cases. Federal judges have mandatory retirement at age 75. Appeals as of right: constitutional cases must be heard by the national Supreme Court. Provincial supreme courts hear all constitutional cases concerning at least 25,000 pesos. Procurator General (parallels US's Attorney General) may file unconstitutionality actions on own initiative, and must intervene in all such actions regardless of who files. The court decides how much each attorney gets paid in a case, and the losing party must pay both attorneys. Experts are randomly appointed to a case by the court, from a pre-selected list. 90% of the trials in Argentina are abbreviated, meaning they are judged solely on written submissions to the court. Only 10% go to an actual oral hearing. Criminal law calls for "libre conviccion razonada," which means reasonable intimate conviction - a standard not as high as the US's beyond a reasonable doubt. Verdicts have to be explained, whereas in the US they are simply guilty or not guilty. Verdict and sentence are declared at the same time, by the same panel of judges. The victim can have a lawyer proceed even if the state drops the charges, "particular damnificado." The defendent himself can question witnesses. Defendents canNOT plead guilty; guilty is for the court to determine. Argentina law school focus on law - lots of black letter memorization, whereas the US focuses on facts and how to apply the law. Voting: over 18 = mandatory; over 70 = can but do not have to. MEXICO There are 136 Articles in Mexico's Constitution. Citizens are guaranteed civil, political, social, and economic rights; third generation collective rights aim for sustainable development, education, and cultural self-determination. The President sits for a six year term; Congress has two houses - the Senate and the Chamber of Deputies; the judiciary is US-inspired and has 11 justices sitting for 15-yr terms. To amend the Constitution requires a 2/3 vote of the members of Congress present at the vote plus the majority of state legislatures. Separation of powers issues: Art 105(I) articulates the constitutional controversy, which is for conflicts between gov'nt bodies/branches. Art 105(II) lays out the unconstitutionality action, which deals with the abstract challenge to any gov'nt act (along listed restrictions). Art 107(II) declares amparo for individuals, for specific instances. And Art 107(XIII) says that when same level lower courts split on parallel decisions, the S.Ct. will decide the issue; however, note that the S.Ct.'s ruling will not affect either of those two lower court's prior rulings. DOMINICAN REPUBLIC Amparo is not thru their Constitution but is active and valid thru Article 25 of the American Convention on Human Rights. International law created amparo, and it applies against private party action. Amparo can also apply against judicial rulings. ETC. 1) Constitutional Supremecy: (a) self-monitoring, (b) separate body for oversight, and (c) S.Ct. oversees/checks. unconstitutionality action for (potential) violations. 2) Separation of Powers - to secure the rights of individuals: (a) horizontally thru branches of gov'nt, (b) vertically thru fed / state / local gov'nts. Constitutional controversy to deal with violations. 3) Domestic Applicability of International Law -> ratified treaties are part of supreme law of the land, often trumping domestic law (even w/o implementing legislation); (a) self-executing, (b) programmatic. a) exculpatory excuse : it is still wrong, just don't punish for it b) justificatory excuse : conduct is okay in itself a) territory of law : subject to law of area you are in b) personality of law : subject to law of your ethnic group a) discrete holding : "inter partes," relative effects, binds only the parties b) jurisprudential holding : "erga omnes," general effects, binds all/everyone a) dualist : domenstic Constitution prevails over international law b) monist : international law prevails