Latin American Legal Studies

Structural Problems of the “Cooperation Agreement”

Gustavo A. Beade — Thu, 21 Dec 2023 00:00:00 +0000

For several years, the procedural legislations of Latin American countries have incorporated various practices that, in theory, allow for a more effective prosecution of certain crimes. Among them, there are the so-called "repentance laws," which allow individuals under investigation for serious crimes to provide information about other participants in the same act in exchange for receiving lighter punishments or immunity. The objective of this work is to present the most relevant criticisms concerning these practices and analyze them from the perspective of theories of punishment. I will attempt to demonstrate that there are theories of punishment that would permit laws on "repentance," but I shall focus on the proposal of communicative punishment theories.

Longing for Better Law – On Legal Development and the Plurality Issue

Florencia Benitez-Schaefer — Thu, 21 Dec 2023 00:00:00 +0000

Amidst plural claims for the recognition and respect of diversity, not only the structures but also the very rationale of modern law have shown problematic limitations. In this paper, I argue that a core challenge for contemporary socio-legal transformation relies on how modern law is called to relate to difference and development in order to fulfill its promise of preventing or resolving conflicts. This is, I argue, the result of law’s embeddedness in a modern sociolect that pervades social interaction with a double appeal. It compels equally to reject dogmas as much as to fix one position that is argued as ‘the’ (most) rational one.

This paper combines the socio-linguistic theory of Peter V. Zima with an inquiry on the relation between modern law and development in the historical context of world-encompassing colonialism and sociological research on legal development in recent Latin American history, more specifically using the example of the Colombian Constitutional reform in 1991. On this basis, I argue that the strained relation of law with plurality is determined by the modern sociolects it is embedded in along with the notion of ‘development’, independently of the political ideology that concrete projects pursue. While ‘early-modern’ conceptions of law aim to (dis)solve differences, ‘late-modern’ ones are trapped in ambivalent ‘solutions’ that leave the door open to all sorts of power-abuse. On this transdisciplinary ground the paper aims to provide tools for reflection on current processes of legal reform.

Aggressive Practices and Consumer Protection: An Approach from Chilean Law

Patricia López Díaz — Thu, 21 Dec 2023 00:00:00 +0000

The purpose of this article is to address aggressive practices directed at the consumer in Chilean law, formulating a notion of them, systematizing them from the harassment, coercion and undue influence that the provider exerts on the consumer and supporting the applicable protection. To achieve this purpose the dogmatic method and the examination of comparative legal systems that discipline them both in consumer and unfair competition, as well as Law N° 19.496 of the protection of consumer rights (LPC) has been used. The main result is to provide a notion of them, formulate a taxonomy and draw the scope of the protection that the consumer can activate against commercial practices that appear their right to freely choose a good and/or service.

20 Years from Aedo v. Fisco: Is There Still Something of the Old Public Law Nullity?

Cristóbal Millar Bruna — Thu, 21 Dec 2023 00:00:00 +0000

On November 27, 2000, the Supreme Court decided the case "Aedo v Fisco", which set an important precedent regarding the understanding that traditional doctrine and case law had regarding public law nullity and its scope. After two decades, the question arises regarding the validity of this line of cases. Based on the examination of ten subsequent cases, a brief analysis of the new contours that the Supreme Court has set out regarding the general regime of the action for public law annulment is presented. In light of the evidence provided by the rulings, the author questions the validity of this action as a general mechanism for protecting the rights of the administered, noting the troublesome state of national administrative litigation.

Some Reflections on Force Majeure Clauses in Modern Contracting

Rodrigo Momberg U. — Thu, 21 Dec 2023 00:00:00 +0000

Force majeure clauses are one of the mechanisms commonly used by the parties in complex and long-term agreements to regulate the effects of supervening circumstances on the obligations of one or both parties. However, there are still issues that have not been sufficiently studied by the doctrine. This paper intends to deal with some of the most relevant ones. In particular, it will analyze the problems related to the faculty of the parties to alter the legal concept of force majeure, the conventional enumeration of events constituting force majeure and, finally, the effects of force majeure on the obligations of the debtor.

Civil Liability of the Principal Company for Workplace Accidents in the Subcontracting Regime: A Critical View of Case Law

Pamela Prado López — Thu, 21 Dec 2023 00:00:00 +0000

Having elapse over fifteen years since the enactment of Act No. 20.123, the purpose of this work is to critically review the way in which Supreme Court’s case law has interpreted the liability of the project’s principal company for the accidents suffered by workers of contracting and subcontracting companies.

Producing Knowledge (Despite the Storm)

Roberto Fragale Filho — Thu, 21 Dec 2023 00:00:00 +0000

The institutional production of interdisciplinary knowledge very frequently encounters bureaucratic barriers that transform academic life into a steeplechase. Producing interdisciplinary legal knowledge is even more difficult and has been the keynote of the path followed by the Graduate Program in Sociology and Law (PPGSD) of Fluminense Federal University (UFF). This article proposes a revision of its educational path, examining the changes in the research agenda over two decades and its impact on the creation of new university cadres. In the end, the challenge remains the same: to expand the possibilities of insertion of graduates in a dogmatic and disciplinary world, which resists interdisciplinary knowledge.