The challenges and complexities of procedural legal transplants : the case of Chile

The following dissertation locates itself at the intersection between judicial reform and legal transplants scholarship. It examines the "nuts and bolts, " the minutiae of procedural legal transplants, by focusing on the Chilean procedural reform experience. Although most Latin-American countries have experienced procedural reforms during the last 30 years, Chile stands out as a study case. Indeed, before the reforms, Chilean justice worked with a "hopelessly written" dossier system, and oral proceedings were a fact only discussed in comparative law textbooks and seen in movies and foreign TV shows. However, the country radically changed this by introducing a foreign legal institution, the concentrated trial hearing. What makes Chile different is that this innovation was added not only as part of the criminal reform but instead, the country, like only a few others, introduced it as a central element of the family and labor procedural transformations as well. Furthermore, these three reforms were also part of the same public policy of judicial reforms, under the same political coalition. Most research on legal transplants compares legal institutions at the source and its reception in the host system. However, this research innovates by looking at how one foreign legal idea was introduced as the key element of three procedural reforms initiatives, developed very closely in time, and in the same legal system. By comparing, contrasting, and analyzing them thoroughly, this investigation identified the specific differences in their day-to-day performance and examined in detail the diverse factors that contributed to their occurrence. Using more than 50 original semi-structured interviews with judges, lawyers, court administrators, and legal reformers, over 70 court observations, and by examining records and original statistical information, this dissertation finds important differences in how the idea of the concentrated trial hearing was understood and operationalized by the three procedural reforms in the country. In fact, while these reforms shared the same procedural principles, structure, evidence framework, and many rules, there were important differences between the performance of concentrated trial hearing at the criminal trial courts compared to family and labor courts. Among these differences, two were explored in-depth. First, the piecemealing of the trial hearing that happens at the family and labor courts, a phenomenon in which the trial hearing could be split in small sessions months apart. Secondly, the rise of managerial judging practices by the family and labor judges, although nor the law, the legal reformers, or the legal scholarship anticipated them. Later, the dissertation presents and analyzes the two main variables that explain this variance. The first was an institutional one. In fact, several mistakes in the implementation process of the family courts reform led to an institutional crisis that lasted for many years, placing these courts under high public scrutiny and the desperate need to regain prestige and legitimacy. Consequently, they took several organizational and workload-related measures at the expense of sacrificing the concentrated trial ideal. Following this path, the new labor courts took very similar administrative measures to avoid the risk of becoming a second "public failure, " producing similar consequences. A second variable refers to the legal transplant process itself, especially the role of legal reformers, as the emergence of judicial case management practices was the consequence of an "unintended legal transplant." This research finds that this practice responded to a series of problems that the introduction of orality involved and that the family and labor legal reformers were unable to anticipate, something that revealed the differences in the work of the legal reformers themselves. Finally, this thesis suggests that the different groups of legal reformers behind each procedural transplant explain in many ways why the criminal procedure reform follows closely the core values that supported it while the family and labor courts diverge from them in important ways. The criminal procedure reformers had essential advantages, including skill and knowledge, which allowed them to regulate the legal change in a more precise way and anticipate many of its problems. Moreover, the criminal legal reformers steered the transplantation process from inception to implementation, something that the family and labor teams were not able to do. The Chilean procedural reform experience, along with its successes and failures, is a valuable lesson for other countries that already have or are going through similar transformations in their justice systems

Keywords: Law JSD.
Advisor: Hensler Deborah R.
Kessler Amalia D. 
Friedman Lawrence M. (Lawrence Meir)