Suchergebnisse

This study deals in a succinct way with the Brazilian model of civil procedural law. There is an historical approach specifically about Portuguese law which was in force in Brazil at the beginning (until 1832), after what there comes a brief description of the judiciary structure (courts and judges) and only then we talk about the scope of civil procedure, its fundamental principles and, in a "law in practice" approach, access to justice. The role of a judge towards deciding "according to statutes and evidence" is analysed and the current importance of case law is deeply focused, mainly according to the new CPC (in force since 2015) and so are appellate proceedings, class actions, enforcement proceedings and ADR. The last items concern the role and the importance of academia, and some interesting cultural observations, where we deal with the very serious crisis, both ethical and economic, that Brazil is living now, in the political sphere. The judiciary branch is now our only hope.

All three branches of the federal government have instituted initiatives aimed at reducing expense and delay in civil litigation. On October 23, 1991, President Bush issued an Executive Order that imposes a number of requirements on government lawyers who participate in civil litigation. During February 1992, the Administration sponsored introduction of the Access to Justice Act, its legislative proposal for civil justice reform. The bill did not pass, because it included certain provisions that apparently proved unacceptable to many members of the House and Senate. Regardless of how the controversy over civil justice reform is ultimately resolved, the reform effort will significantly change the nature of federal civil litigation. All attorneys who advise or represent individuals or entities that do or could litigate civil cases in federal court must be familiar with these new developments in civil procedure. This is especially true, because each of the ninety-four districts can adopt procedures which vary from those that every other district prescribes and from the Federal Rules of Civil Procedure. This paper charts the course of these recent developments. The piece first explores relevant civil justice reform efforts in each branch of the federal government. It examines the legislative and judicial branch endeavors together because they are closely linked. The paper then makes some predictions regarding the future course of the reform.

The South African adversarial system of civil procedure in the High Court owes its origin to that of England. As with all civil procedural systems, the South African system is not stagnant. Its primary sources, namely Acts of Parliament and rules of court, are constantly amended in an attempt to meet the changing needs of society. Court delay and costinefficient procedural mechanisms, however, contribute to public dismay. The High Court, in the exercise of its inherent power to regulate its process, do so with the purpose of enhancing access to justice. The advantage of the system lies in the fact that it is not cast in stone but could, subject to the Constitution of the Republic of South Africa, 1996, be developed to make it more accessible to the public whilst protecting the public's fundamental rights entrenched in the Constitution and, in this regard, particularly the right to afair trial embedded in sec. 34 of the Constitution. This contribution gives an overview of the system with reference to the court structure, the judiciary, the process in the High Court and its underlying principles, appeals, class actions and alternative civil dispute resolution mechanisms.

The authors of several papers in this Symposium have justifiably criticized the essay that former Vice President Dan Quayle published in Volume 41 of The American University Law Review. Many knowledgeable observers of the civil justice system have leveled equally legitimate criticism at civil justice reform initiatives that the Bush administration instituted. Questionable data, arguable policy, or overheated political rhetoric supported certain aspects of the Vice President's paper, as well as most of the proposals developed by the Competitiveness Council that the Vice President chaired and numerous efforts of the Republican administration in the area of civil justice reform. One endeavor, involving executive branch civil justice reform in the field of federal civil procedure, apparently was less problematic. That effort, which aimed to "facilitate the just and efficient resolution of civil claims" involving the United States Government, imposed a number of requirements on government attorneys who participate in civil litigation. This is a Bush administration initiative that Vice President Quayle mentioned in his essay and that the Clinton administration must rigorously analyze. The Bush administration briefly experimented with civil justice reform in the executive branch. President Bush promulgated Executive Order 12,778 on October 23, 1991, and the order became effective in January 1992. That same month, the United States Department of Justice issued preliminary guidance that was intended to assist federal agencies and government lawyers in effectuating the Executive order. Nonetheless, the Department only finalized those guidelines in the waning days of the Bush administration. Although the Republican administration did not fully implement executive branch civil justice reform, the Executive order and the accompanying guidance seemed well considered and prescribed some procedures that apparently would be efficacious in reducing expense and delay, the ostensible purpose of civil justice reform. Moreover, the order and the guidelines will be in effect until President Clinton modifies them, so that his administration must decide how to treat this nascent reform. The factors above mean that civil justice reform in the executive branch warrants systematic assessment to ascertain whether the Clinton administration should continue experimenting with the concept and, if so, how the administration can most effectively implement the reform. This Article undertakes that effort. The Article first traces the origins and development of civil justice reform in the area of federal civil procedure, emphasizing the Bush administration's attempts to institute executive branch reform. The Article then critically evaluates the Bush administration initiative and finds it sufficiently promising to warrant additional effectuation and ongoing experimentation, particularly if the endeavor is vigorously implemented, rigorously evaluated, and recalibrated. The third Part of this Article affords numerous suggestions that the Clinton administration should follow to effectuate, and to continue experimenting with, civil justice reform in the executive branch.

Civil Justice, Privatization, and Democracy demonstrates the urgent need to publicize, politicize, debate, and ultimately temper these moves towards privatized justice.