Revisiting a "promising Institution": Public Law Litigation in the Civil Law World

• Citation: Vol. 24 No. 3
• Publication year: 2010

Georgia State University Law Review

Volume 24 j 2

Issue 3 Spring 2008

3-21-2012

Revisiting a "Promising Institution": Public Law Litigation in the Civil Law World

Lesley K. McAllister

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Recommended Citation

McAllister, Lesley K. (2007) "Revisiting a "Promising Institution": Public Law Litigation in the Civil Law World," Georgia State

University Law Review: Vol. 24: Iss. 3, Article 2.

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REVISITING A "PROMISING INSTITUTION": PUBLIC LAW LITIGATION IN THE CIVIL LAW

WORLD

Lesley K. McAllister*

Introduction

Group litigation has been the focus of a significant body of comparative law literature since the 1970s. This body of work was largely inspired by the emergence of class actions and other public interest law in the American legal system—the new types of civil litigation that Abram Chayes termed "public law litigation" in 1976.¹ Comparative legal scholars, particularly scholars from outside the United States, have often considered the extent to which such group litigation can and should be transplanted into countries whose legal systems form part of the civil law tradition.

Within this literature, Brazil has attracted attention as one of the few civil law countries that has successfully incorporated and developed a procedural mechanism for group litigation.³ The public civil action—agao civil publico—created by statute in 1985, enables

* Associate Professor of Law, University of San Diego; Assistant Adjunct Professor, School of International Relations and Pacific Studies, University of California San Diego. For their comments and editorial assistance, I thank Colin Crawford, Bert Lazerow, Pierre Legrand, the participants in the seminar "Public Law Litigation and Enforcement: Comparative Perspectives," and the members of the Georgia State Law Review.

1. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1284(1976).

2. See Richard B. Cappalli & Claudio Consolo, Class Actions for Continental Europe? A Preliminary Inquiry, 6 temp. int'l & comp. L.J. 217, 223 (1992); Michael S. Greve, The Non-Reformation of Administrative Law: Standing to Sue and Public Interest Litigation in West German Environmental Law, 22 cornell Int'l L.J. 197, 207, 229-43 (1989); Per Henrik Lindblom, Individual Litigation and Mass Justice: A Swedish Perspective and Proposal on Group Actions in Civil Procedure, 45 AM. J. comp. L. 805, 817 (1997). "Civil law" countries include most of Western Europe, all of Central and South America, and many parts of Asia and Africa. "Common law" countries include Great Britain, the United States, Canada, Australia, and New Zealand. On the origins and operation of the civil law tradition, see generally John Henry merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (2d ed. 1985).

3. See Antonio Gidi, Class Actions in Brazil—A Model for Civil Law Countries, 51 AM. J. comp. L. 311, 323-25 (2003); Michele Taruffo, Some Remarks on Group Litigation in Comparative Perspective, 11 Duke J. Comp. & Int'l L. 405,412 (2001).

694 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 24:693

the legal defense of environmental, consumer and other "diffuse and collective" interests. Brazilian jurists and political scientists have called the introduction of the public civil action a "radical transformation" and even "a revolution" in the Brazilian legal order.⁴ Referred to as the "Brazilian class action" by some, it has been held up as a model for other civil law countries.⁵

However, the most interesting aspect of the public civil action in Brazil is not the procedural instrument itself, but the legal institution that has been key in establishing and using the public civil action to enforce statutory and constitutional rights. This legal institution is the Brazilian Ministerio Publico or, using its French name, the Ministere Public—the prosecutorial institution that constitutes the civil law tradition's analog to the Attorney General in common law countries.⁶ In the late 1970s, the Italian legal comparativist Mauro Cappelletti identified the Ministere Public as a "promising institution" for the legal defense of group and public interests.⁷ In Brazil, to a greater extent than in other civil law countries, prosecutors have shown signs of living up to this promise.

The public law litigation work of Brazilian prosecutors, rather than the procedural instrument they use, is the focus of the present article. As such, it is an exercise in comparative law scholarship of the "legal systems" type rather than the "rule" type, as distinguished by John Henry Merryman.⁸ Merryman explains that while rule comparison has been the predominant form of comparative legal scholarship, rule comparison has "declined into a spent, static enterprise whose potential

4. Rogerio Bastos Arantes, Ministerio Publico e POLfriCA no Brasil 24 (2002); Edis

MlLARE, DlREITO DO AMBIENTE 510 (2001).

5. See Gidi, supra note 3, at 326; Taruffo, supra note 3, at 412. Because of the substantial differences between the American class action and the Brazilian public civil action, I use the literal translation of the Brazilian term, public civil action, throughout this paper.

6. Ministerio Publico can be literally translated as the Public Ministry, but it is more usefully translated as "attorney general," "public prosecution," or "procuracy."

7. 2 Access to Justice: Promising Institutions (Mauro Cappelletti & John Weisner eds., 1979) [hereinafter Access to justice, vol. ITJ.

8. See Pierre Legrand, John Henry Merryman and Comparative Legal Studies: A Dialogue, 47 Am. J. comp. L. 3 (1999); John Henry Merryman, Comparative Law Scholarship, 21 hastings Int'l & Comp. L. rev. 771,775-77 (1998).

2008] PUBLIC LAW LITIGATION IN CIVIL LAW 695

for significant academic productivity is exhausted."⁹ He promotes an approach to comparative law that takes as its unit of comparison not the text of legal rules, but rather the legal institutions, actors, and other components of the "social sub-system" that constitutes the legal system.¹⁰ In his view, a legal systems approach will reinvigorate comparative law studies and help it move past the stagnancy of its traditional tasks.

In the case of group litigation in Brazil, it is not the text of the public civil action law or the details of its judicial implementation that represent the most significant legal innovation, but rather the Brazilian Ministerio Publico^ role in enabling and supporting its development. The story of group litigation in Brazil is the story of this legal institution. Using the public civil action, the Brazilian Ministerio Publico has established a novel and powerful way of enforcing statutory and constitutional rights in the Brazilian legal system—a notable feat in a legal system long characterized by unequal and inadequate enforcement of the law.¹¹ To the extent that civil law countries look to Brazil as a model for group litigation, they should focus their attention on the institutional innovations that occurred rather than novelties in the text of the enabling statute.

In Part I of this article, the literature on public law litigation and the Ministere Public is reviewed. Part II describes the role that the Brazilian Ministerio Publico has played—establishing the legal framework, building its institutional capacity, and doing public law litigation. The conclusion offers final remarks about the potential of the Ministerio Publico in the representation of group interests, including a discussion of important concerns that have been raised about having public prosecutors play this role.

9. Merryman, supra note 8, at 782.

10. See Legrand, supra note 8, at 62.

11. See Keith s. Rosenn, Brazil's Legal Culture: The Jeito Revisited, 1 fla. Int'l L.j. 1, 19 (1984); Keith s. Rosenn, The Jeito: Brazil's Institutional Bypass of the Formal Legal System and Its Developmental Implications, 19 am. J. comp. L. 514, 514 (1971).

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I. Public Law Litigation

In 1976, the American legal scholar Abram Chayes observed that a new type of civil litigation had become common in the federal courts of the United States. As this new civil litigation concerned public policy issues that arose from the implementation and enforcement of public laws, he called it "public law litigation." Other scholars before and after Chayes have described this legal activity using many other names—group litigation, public interest litigation, private attorney general actions, and policy-oriented litigation. Although their definitional contours vary, each of these terms expresses the idea that civil lawsuits are being used in a new way to benefit the condition of groups within society or society as a whole.

While Chayes and other scholars described this new type of litigation in the United States, foreign scholars analyzed the need for group litigation in their legal systems. In particular, Mauro Cappelletti, an Italian comparativist, researched and wrote extensively about how European countries with civil law systems might enable the legal defense of group interests, which he viewed as an essential aspect of "access to justice" in a modern society. The basic question that motivated his research was whether and how the legal systems of civil law countries might be made available for enforcement of social rights in the way that United States courts were

12. See Owen m. Fiss, The Civil Rights Injunction (1978); Donald l. Horowitz, The Courts and Social Policy (1977); Stephen C. Yeazell, From...