Latin american trans-individual suits
| Autor | Ángel R. Oquendo |
| Cargo | George J. and Helen M. England Professor of Law, University of Connecticut |
| Páginas | 41-79 |
Revista Eletrônica de Direito Processual – REDP. Volume XIII.
Periódico da Pós-Graduação Stricto Sensu em Direito Processual da UERJ.
Patrono: José Carlos Barbosa Moreira www.redp.com.br ISSN 1982-7636
41
LATIN AMERICAN TRANS-INDIVIDUAL SUITS
Ángel R. Oquendo
George J. and Helen M. England Professor of Law, University of
Connecticut. Ph.D., M.A. (Philosophy), A.B. (Economics and
Philosophy), Harvard University; J.D., Yale Law School. The
author would like to thank Anne Dailey, Humberto Dalla,
Julianne Lombardo, and Joseph Page for their extremely helpful
comments on earlier drafts
ABSTRACT: This work contends that Latin America has launched a true revolution on
collective rights: moving beyond the paradigm of group entitlements, which concern a
determinate—though potentially enormous—collectivity, to that of diffuse entitlements,
which generally pertain to society as a whole. Latin American jurisdictions have
created innovative procedural mechanisms in this area: the collective writ of protection
for the realization of group rights, the popular action for the civic vindication of diffuse
entitlements, and the public civil action for the official enforcement of both kinds of
rights. The U.S. legal order has much to learn from a comparative reflection upon these
developments. It could, accordingly, open up to the creation of a universally available
citizen’s suit, the institution of an autonomous state body with power to file complaints
on behalf of communal and societal interests, the concession of standing to
organizations (as well as individuals) to pursue class suits, and the introduction of a
single, straightforward classification under Rule 23(b) of the Federal Rules of Civil
Procedure.
The article concludes by calling attention to the tension between Latin American
efforts to implement trans-individual guaranties and the sporadic precariousness of the
rule of law in the region. It argues that, beyond adopting new measures or punishing
violators more severely, the countries affected must broadly enhance the legitimacy of
legal norms by renewing their commitment to democracy, as well as to other ideals,
such as the rule of law itself, personal freedom, and (above all) solidarity.
Revista Eletrônica de Direito Processual – REDP. Volume XIII.
Periódico da Pós-Graduação Stricto Sensu em Direito Processual da UERJ.
Patrono: José Carlos Barbosa Moreira www.redp.com.br ISSN 1982-7636
42
Nos cruzamos en noche de ventisca;
en las mismas posadas estuvimos,
ciegos dormidos y ciegos despiertos.
1
GABRIELA MISTRAL, Dos trascordados, LAGAR II (1991)
I. WARM-UP
Upon accepting the Nobel Prize for Literature in Stockholm, Gabriel García
Márquez spoke these words:
América Latina no quiere ni tiene por qué ser un alfil sin albedrío, ni tiene nada
de quimérico que sus designios de independencia y originalidad se conviertan
en una aspiración occidental.
2
Indeed, Latin or Iberian America has recently started acting fiercely
independently and originally with respect to the law.
3
It has, once and again, broken
with the past, created unprecedented possibilities, and positioned itself to influence the
rest of the world. This paper investigates this general phenomenon in the context of
collective suits. It principally focuses on the Brazilian legal system, which has
displayed the most innovativeness in this area, but also turns to other jurisdictions in
order to illustrate the breadth of this development.
1
Literally: “Our paths crossed on that blustery night; we lodged at the same inns: blindly asleep and
awake.”
2
Gabriel García Márquez, Recipient of 1982 Nobel Prize in Literature, Nobel Lecture, La soledad de
América Latina (Dec. 8, 1982) translated in LES PRIX NOBEL; THE NOBEL PRIZES 1982 (Wilhelm
Odelberg ed., 1983) (“Latin America neither wants, nor has any reason, to be a pawn without a will of its
own; nor is it merely wishful thinking that its quest for independence and originality should become a
Western aspiration.”).
3
The term “Latin America” technically refers to the former colonies of “Latin” nations, such as Spain,
Portugal, and France. Nowadays, however, it usually denominates Iberian America and thus refers only
to the New World territories colonized by the nations that occupy th e Iberian peninsula, i.e., Spain and
Portugal. This paper deploys the ter m “Latin America” in this contemporary, albeit inaccurate, sense. It
makes use of the more precise, but less current expression “Iberian American,” only intermittently. It
thus seeks to maintain the former, as familiar and readily comprehensible, while gradually introducing the
latter.
The piece focuses on Iberian American countries because, as partial cultural descendants of nations that
share so much history, they evince considerable coherence in their conceptions of rights. Former Spanish
and Portuguese colonies converged legally during colonial times and frequently developed their law
under the influence of each other after independence. They certainly overlap with countries formerly
colonized by France more so than they do with Anglo-American nations; yet undoubtedly less th an they
do with each other. For instance, some of the key legal institutions, such as the writ of protection (or
amparo), prevail in the Iberian American realm, but not in its Franco-American counterpart.
Revista Eletrônica de Direito Processual – REDP. Volume XIII.
Periódico da Pós-Graduação Stricto Sensu em Direito Processual da UERJ.
Patrono: José Carlos Barbosa Moreira www.redp.com.br ISSN 1982-7636
43
Accordingly, the present inquiry casts aside the usual cliché of Latin America as
a land of chaos, oppression, lawlessness, and hopelessness. It shows a radically
different and oft-neglected side of the coin. At the same time, it resists the luring
temptation to depict the region as a monolithic whole. The article takes pains to
underscore the profound legal diversity that permeates this vast territory. It identifies
transnational trends, but stresses that the specific form that they take and the extent of
their pervasiveness vary enormously from one country to the next.
The aim of the discussion is not merely to describe representative litigation
south of the border, but rather to select certain promising aspects and thereupon image a
new and improved praxis. Inasmuch as this approach concentrates on existing
institutions and on their possible reformation, transitioning from what is to what might
and should be, it proceeds both descriptively and normatively, perhaps more in the latter
than in the former fashion.
This work expounds the thesis that Latin America has launched a true revolution
on collective rights: moving beyond the paradigm of group entitlements, which concern
a determinate—though potentially enormous—collectivity, to that of diffuse
entitlements, which generally pertain to society as a whole. The former rights, which
one might also denominate “communal” or “micro-collective,” include, for example,
those of the inmates of a prison to constitutional incarceration conditions and those of
all consumers of tobacco to compensation for ensuing injuries to their health. The latter
rights, which one might additionally term “societal” or “macro-collective,” encompass,
for instance, those of the entire population to a safe environment and those of the
citizenry to a fair counting of their votes in an election. This contrast parallels, though
only imperfectly, that between second- and third-generation entitlements.
4
For present
purposes, the adjectives “collective,” “trans-individual,” “meta-individual,” and
“representative” not only share a wider range of application than the two categories just
distinguished, but also encompass both of them as subsets.
Latin American nations have taken an initial, almost rhetorical step by
constitutionally recognizing a new set of substantive micro-collective and macro-
collective guaranties. They have then consolidated this shift by creating procedural
means to breathe life into these norms. This essay predominantly pores over this second
move.
4
See Part II for further discussion of this matter.
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