How we understand what procedure is due as a fundamental or constitutional right can have a critical impact on designing a civil procedure. Drawing on comparative law and empirically oriented methodologies, in this book the author provides a thorough analysis of how procedural due process is understood both in national jurisdictions and in the field of international human rights law.
The book offers a suitable due process theory for civil matters in general, assessing the different roles that this basic international human right plays in comparison with criminal justice. In this regard, it argues that the civil justice conception of due process has grown under the shadow of criminal justice for too long.
Moreover, the theory answers the question of what the basic requirements are concerning the right to a fair trial on civil matters, i.e., the question of what we can and cannot sacrifice when designing a civil procedure that correctly distributes the risk of moral harm while remaining accessible to people with complex and simple legal needs, in order to reconcile the requirements of procedural fairness with social demands for justice.
This book makes a valuable contribution to the field of civil justice, legal design, and access to justice by providing an empirically based normative theory regarding the right to a fair trial. As such, it will be of interest to a broad audience: policymakers, practitioners and judges, but also researchers and scholars interested in theoretical questions in jurisprudence, and those familiar with empirical legal studies, comparative law, and other socio-legal studies.
Author(s): Ricardo Lillo Lobos
Series: Ius Gentium: Comparative Perspectives on Law and Justice, 97
Publisher: Springer
Year: 2022
Language: English
Pages: 282
City: Cham
Foreword
Preface
Acknowledgments
Contents
Chapter 1: Introduction
References
Part I: An Introduction of Two Ideal Types. The Checklist and Flexible Models of Procedural Due Process
Chapter 2: Due Process as a Subject of Special Jurisprudence. The Checklist and Flexible Models of Procedural Due Process
2.1 The Checklist Model
2.2 The Flexible Model
References
Part II: Legal Procedure as a Barrier for Access to Justice: Why Understanding Due Process and Its Requirements Over Civil Pro...
Chapter 3: The Crisis of Civil Justice. Criticism from the Access to Justice Movement and the Reform Movement in Latin America
3.1 The Crisis of Civil Justice, Access to Justice and Unmet Legal Needs. Comparative Perspectives
3.2 The Right of Access to Justice and the Functions of Civil Justice for the Rule of Law
3.3 The Civil Procedure as a Barrier of Access to Justice in Latin America. The Reform Movement
3.3.1 The Civil Procedure of the Ius Commune
3.3.2 The Iberian American Model Code of Civil Procedure
References
Chapter 4: Preliminary Exercise of a Comparative Perspective. Different Approaches on How the Right to a Fair Trial Has Been A...
4.1 The Path of Justice Tradition, the Concept of Unmet Legal Needs and a Hypothetical Case for the Comparative Exercise
4.1.1 The Butchers
4.2 Comparing California and Chile
4.2.1 Applicable Substantive Law
4.2.2 Due Process/Fair Trial Applicable Provisions
4.2.3 The Applicable Legal Procedure in California. Empirical Data on the Small Claims Court of Los Angeles, California
4.2.4 The Applicable Legal Procedure in Chile. Empirical Data on the Civil Courts of Santiago
References
Part III: The Requirements of Fairness in Civil Procedure. Procedural Due Process in International Human Rights Law. Answers f...
Chapter 5: A Methodology to Study Two Regional Human Rights Protection Systems
5.1 An Operational Definition of Civil Justice
5.2 Variables to Apply to Databases of Each Court
References
Chapter 6: The Inter-American Court of Human Rights Case Law on Due Process Over Civil Matters
6.1 The Role of the Inter-American Commission on Human Rights and Its Thematic Reports
6.2 The Case Law of the Inter-American Court of Human Rights
6.3 Requirements Over Civil Matters in the Inter-American Court of Human Rights. The Expansive Approach
References
Chapter 7: The European Court of Human Rights Case Law on Due Process Over Civil Matters
7.1 The Right to a Fair Civil Trial. Scope of Application and General Description of Its Case Law
7.2 The Right to a Court in the ECHR Case Law
7.3 The ECHR Concrete Analysis of Effectiveness
7.3.1 The Flexible Model Approach Under the Civil Limb of Article 6.1
7.3.2 The Checklist Model Approach in the Article 6.1. Civil Limb
References
Chapter 8: A Brief Comparison Between Both Regional Systems
8.1 Identifying Some Commonalities and Differences Between Both Regional Systems
8.2 Possible Explanations and Future Research Questions
References
Part IV: Procedural Due Process in the American Legal System
Chapter 9: Origins of the Due Process Clause. The Magna Carta Until Its Incorporation in the American Bill of Rights
9.1 Origins of the Due Process Clause and the Link with the Legal Procedure. From the Thirteenth to the Sixteenth Centuries
9.2 The Petition of Rights of 1628. The Work of Sir Edward Coke and the Rise of the Modern Conception of Due Process
9.3 The Migration of the Due Process Clause to America
References
Chapter 10: The Path of Procedural Due Process into the American Constitution. Scope of Application
10.1 The Fifth Amendment Clause and the Incorporation Clause in the Fourteenth Amendment
10.2 Fair Trial Conceptions in the Seventh Amendment Right to Jury Trial in Civil Cases
10.3 From the Early Case Law on Procedural Due Process Until the Due Process Revolution
References
Chapter 11: Modern Conceptions of Procedural Due Process and the Right to a Fair Trial in Civil Matters
11.1 The Due Process Revolution in Non-criminal Matters. The Mathews v. Eldridge Test
11.2 Some Modern Debates on Procedural Due Process in Non-criminal Matters
11.3 The Right of Access to the Courts and the Due Process Clause. A Brief Look at States´ Legal Systems
11.4 Two Possible Explanations and Lines for Future Research
11.4.1 Historical Developments Leading to the Modern Understanding of Due Process
11.4.2 The State Action Doctrine and a Brief Critique of Its Application to Civil Matters
References
Part V: Escaping from the Shadow. A Due Process Theory in Non-criminal Matters to Harmonize with Access to Justice Demands
Chapter 12: Why Civil and Criminal Procedures Require Different Theories on Procedural Due Process
12.1 From the State v. Individual to the Individual v. Individual Paradigm
12.1.1 The Paradigm of the State v. Individual
12.1.2 The Paradigm of Individual v. Individual
12.2 Different Configurations Between Purpose and Party Disposition
References
Chapter 13: The Right to Access to Justice as a Key to Understand the Right to a Fair Trial in Civil Matters
13.1 The Right to Access to Justice as a Requirement Under Process-based and Outcome-based Theories of Procedural Fairness
13.2 How This Theory Fits Practice
13.3 The Role of the Flexible and Checklist Models in a Balance Based on Effectiveness
13.3.1 The Balance on Effectiveness Under the Flexible Approach
13.3.1.1 Particular Circumstances Are Analyzed to Ensure Effectiveness
13.3.1.2 The Nature of the Legal Procedure to Decide What Serves Better Its Purpose
13.3.1.3 Procedural Guarantees May Be Limited Under a Criterion of Proportionality
13.3.1.4 More Latitude in Civil Matters and Deference to the Decision-Maker
13.3.2 The Floor Provided by the Checklist Approach
13.3.2.1 Checklist Approach to Enhance Protection in Vulnerable Conditions
13.3.2.2 Final Judicial Decision and Its Enforcement as Strictly Required
13.3.2.3 Right to an Impartial and Independent Tribunal
13.3.2.4 Prior Notice and Hearing as a Minimum Requirement
13.3.2.5 Some Issues Are Best Left to Legislation
13.4 Final Remarks and Future Lines of Research
References
