By Nasr Escobar,Differences Between the Brazilian and U.S. Legal Systems

By : Nasr Escobar

 

Brazilian and U.S. legal systems

Differences Between the Brazilian and U.S. Legal Systems

As many Brazilian attorneys already know, the Brazilian and U.S. legal systems are quite different. The U.S. legal system is a common law system, based on English traditions, where published opinions of judges are viewed as binding legal authority. This is in contrast to the Brazilian civil law system, which is based on European civil codes, especially that of Portugal, and which elevates the importance of codified law over judicial precedent.

Yet despite these differences in fundamental structure, there are still some similarities that attorneys from both countries will find familiar. In this post, we will cover some of these differences and similarities in order to give Brazilian attorneys a clearer understanding of how the American legal system works and to explain the basics regarding the role of lawyers in America.

It is important to first understand case law (published judicial opinions) and codes (laws enacted by legislative bodies). Although the U.S. has a common law system, extensive statutes, rules and codes exist at the federal, state and local levels. Published judicial opinions are by no means the sole source of authority in American jurisprudence. In fact, litigation is frequently driven in large part by codified law.

This mixture of sources of authority will likely come as no surprise to attorneys in Brazil. While Brazilian codes are key sources of law, the practice of súmula vinculante (through which binding opinions and decisions are issued by the nation’s highest courts) provides an analogous frame of reference for understanding how American case law precedent is used.

Legal education

In Brazil, a legal education is provided in an undergraduate context, and it takes roughly five years to earn the Bacharel em Direito (Bachelor of Laws) that qualifies students to sit for the bar exam. In contrast, in the American educational system, students first obtain a four-year undergraduate degree (a bachelor’s degree), in any non-legal topic of their choosing, from a college or university. Then, they attend three-year programs at law schools, and earn a Juris Doctor (JD) degree. Only at that point may they sit for the bar exam.

Roles of lawyers

In Brazil, a judge takes the lead in litigations, investigating the facts, examining witnesses and appointing experts for questioning. In America, on the other hand, the attorneys for the parties in conflict perform many of these functions. Evidence is brought to light through a process called “discovery,” in which the attorneys for the plaintiff and defendant ask questions and request materials from one another, under the oversight of the judge. Much like in Brazil, however, there are not separate restrictive classifications for attorneys that practice different kinds of law. Passage of the bar and licensure entitles an attorney to represent clients in court, draft contracts and generally provide counsel in all legal areas.

Court systems

In Brazil, there are state and federal courts. In America, another layer of minor courts called municipal (or local) courts exist to handle small matters or matters pertaining to particular niches (e.g., vehicular traffic offenses). In addition, instead of two high courts divided into constitutional and code interpretation (i.e., the Supreme Court or Supremo Tribunal Federal (STF), and the Superior Court of Justice, the U.S. has a single federal Supreme Court to handle all such matters.

Brazilian and U.S. Legal Systems

For the most part, the increased importance of attorney participation in court proceedings and the reliance on case law are the main differences for Brazilian attorneys to be aware of regarding the American legal system. Those interested in delving further into the details of U.S. law, or are considering expanding their practices internationally, might want to consider looking into the Brazilian Chamber of Commerce Law Division.

By: Nasr Escobar

nasr escobar

HipHop Artist `Drake`sued over hit songs “Marvins Room” by ex -girlfriend

HipHop Artist `Drake`sued over hit songs “Marvins Room” by ex -girlfriend.

Drake has been sued by an ex-girlfriend who claims she co-wrote the hit song “Marvin’s Room” and HipHop Artist `Drake`sued over hit songs “Marvins Room” is entitled to part ownership in the copyright in the song; copyright in the sound recording; and payment of songwriter royalties.  

 

The first 30 seconds of the song is a recording of a phone conversation with the ex-girlfriend and plaintiff, Erika Lee. Lee asserts that she and Drake had every intention to write the song together. Her contributions were intended to be incorporated into the final song.

HipHop Artist `Drake`sued over hit songs “Marvins Room”

Lee contends the intro “phone message” is key to the underlying song.Lee’s complaint is somewhat confusing as issues of ownership of the sound recording are intermingled with claims asserting ownership in the underlying song.

The most interesting thing in the complaint to me is a cause of action for Breach of Fiduciary Duty. Really, songwriters have a fiduciary duty to one another? If a record label doesn’t have a fiduciary duty to an artist. Do we really think that one songwriter would owe the highest duty of utmost care to a co-writer?

 

 

By: Nasr Escobar

 

NasrEscobar
Nasr Escobar,United Nations Office

Ambassador to The African Union
240 Park Ave NY.NY 10001