Comparative corner - Autumn 2021

Friday 11 February 2022

Richard Singleton

Blank Rome, New york


Robert S. Russell

Borden Ladner Gervais, Toronto


Fernando Eraña

Pérez Correa González, Mexico City


A light-hearted (non-academic) comparative discussion of the laws of Canada, Mexico and the United States, by lawyers from each of the three countries. A different topic will be discussed in each edition of the North American Regional Forum Newsletter. This edition’s discussion focuses on a broad comparative overview of the legal systems. The participants are Richard Singleton of Blank Rome (US), Eraña of Pérez Correa González (Mexico), and Rob Russell of Borden Ladner Gervais (Canada).

Fernando: I have always admired the decentralised constitutional control in the US. But it seems like many disconnected courts making contradictory rulings on the same issue. Richard, you are an American lawyer, can you explain it in a nutshell?

Richard: Probably not completely because it is complicated. But basically, the US is comprised of 50 states and several territories, all of which have their own legislatures, governors, court systems and laws. Then there is the federal government, which has its own legislature (Congress – House and Senate), judiciary/courts, and executive branch – President. Think of the federal government as the ‘umbrella’ under which the state governments operate with certain autonomy.

The starting point is the written US Constitution which essentially establishes the framework for our ‘federal’ system and, together with the amendments thereto, proscribe the limits of the federal government’s power over the state governments and the limits that the federal and state governments can impose on an individual rights. The federal government is free to enact any statutory law permitted by the constitutional authority granted to it, and federal statutes are binding on all companies and people in the US regardless of where they live. Federal administrative agencies are established by federal statute (eg, the Federal Food and Drug Administration) and promulgate regulations that have the force of federal law. States are free to enact their own laws and regulations to govern matters within their state borders provided those laws do not violate or conflict with the Constitution or federal law.

Fernando: That is very similar to what happens in Mexico (our federal system is inspired in the American Constitution). In Mexico we have 32 states and Mexico City (which is the seat of the federal powers) with their own local (unicameral) legislative, judicial and executive (governors) powers, and on the other hand we have the federal government, as well with its own, bicameral legislative (Congress), judicial and executive (President) powers.

Our federal regime is governed by the Federal Constitution, which divides the powers of the state in three branches of government and enlists the powers of the state and its three branches. Our Constitution provides for a residual clause whereby everything not expressly attributed to the federal government is reserved to the State and Municipal governments. All federal and local laws cannot contravene the principles established in the Constitution.

But in the US how do the courts relate to each other and how is uniformity in the law maintained?

Richard: That is a very interesting question. The simple answer is uniformity is not necessarily maintained, nor is it always desirable. One of the strengths of our system is to ensure that there may be diversity in the law. For example, the state laws of Montana may be very different from laws of California, and both may be very different from the laws of New York. This is because of a state’s particular history, culture, geography and political composition (liberal or conservative). A good example is the sale of marijuana which is legal in some states but not in others. But there is more uniformity and predictability among the laws of various states than you might think, especially in commercial law and in the application of federal law.

The relationship of the courts is easier to explain. Each state has its own court system usually consisting of a trial level court of general jurisdiction, an intermediate level court to which appeals from a trial court may be made as a matter of right, and a court of last resort. Appeals to the court of last resort are a matter of right in some matters and discretionary in others.

In the federal court system, the trial courts are known as ‘District Courts’. Each state has at least one District Court and, depending on its size, can have several District Courts positioned at various geographic locations within the state. The District Courts have limited subject matter jurisdiction and may only hear cases involving questions of federal law, matters within admiralty jurisdiction, and disputes between citizens of different states or citizens of a state and citizens of a foreign country. For the purposes of appeals in the federal system, the US is divided into 11 judicial ‘Circuits’ consisting of two or more states within each Circuit. Each Circuit Court, also known as a Court of Appeals, hears all appeals from the federal District Courts within that Circuit. Such appeals may be taken as a matter of right. The Supreme Court of the US is the highest court in the land. It hears appeals from the Circuit Courts of Appeal and in some cases appeals from the highest appeals court in a state. In the great majority of cases the Supreme Court’s review is discretionary with appeals as of right only in limited cases.

Rob: The system in Canada is somewhat similar to the US and also very different in a number of respects. Canada is a federation of provinces which constitutionally have ‘exclusive’ jurisdiction in a number of areas. For example, health care is within the exclusive jurisdiction of the provinces. The federal government provides funding but cannot dictate health care laws in terms of implementation. Similarly, tort and contract claims fall within the exclusive jurisdiction of the provinces. In contrast, criminal law is within the exclusive jurisdiction of the Federal government and is uniform across the country. The courts and jurisdiction are also similarly split constitutionally between the provinces and the federal government. There are provincial superior courts and courts of appeal in each province as well as a federal court and Federal Court of Appeal. All appeals from the provincial courts of appeal or the Federal Court of Appeal go to the Supreme Court of Canada. The jurisdiction of these courts is based on constitutional grounds. For example, a tort claim cannot be brought in federal court. Generally, contract claims are brought in provincial courts. The distinction with the US can be illustrated in the area of anti-trust law where there is both federal and state legislation. Antitrust claims can be brought in the US federal court system as well as by state governments in the state court system. In Canada competition law is the exclusive jurisdiction of the federal government. All government actions are pursued by the federal Attorney General or the federal Competition Bureau in either the criminal courts or the federal Competition Tribunal. However, civil claims for damages under the federal Competition Act can be brought in either the provincial superior courts or the federal court pursuant to the federal statutory provisions.

Fernando: On the structure of the court system and uniformity, as I mentioned, in Mexico we have different local laws with different provisions that in general are very similar but may differ in certain aspects. We do have mechanisms to standardise local laws, which are generally aimed at guaranteeing human rights, such as the issuance of jurisprudence (discussed below) or the general declaration of unconstitutionality issued by the Supreme Court.

The court system in Mexico can be a little complex to understand. Each state has its minor courts of general jurisdiction, which solve controversies up to a certain monetary amount, and then there are the first instance local courts of general jurisdiction.

Regarding federal justice, Mexico is divided into 32 federal judicial circuits. Each state has at least one federal trial court called a ‘District Court’ with one judge. These District Courts may only hear disputes regarding federal matters and amparo indirecto (against any act of authority that causes a prejudice to the interested party). Above District Courts, Mexico has ‘Circuit Courts’, which are divided in two: (1) Collegiate Circuit Courts, composed of three sitting judges, that hear, among other matters, amparo directo (against final judgments, awards or resolutions that put an end to the trial for violations committed during the course of the proceeding); and (2) Unitary Circuit Courts, composed of only one sitting judge, that hear, among others, some amparos and appeals of decisions of the District Courts. At the highest level of the judicial power, we have the Supreme Court, composed of 11 sitting justices, which hears, among others, constitutional disputes (conflicts of powers among federal, state and municipal authorities), unconstitutionality actions (general rules that are contrary to the Constitution, or to international treaties), and reviews appeals against the rulings of District Courts, Collegiate Circuit Courts and/or Unitary Circuit Courts and general declarations of unconstitutionality.

Richard, from my standpoint it appears that US judges have great power to do whatever they want to do and make whatever decisions they consider appropriate because in many cases there is no statute that covers a particular situation.

Richard: Keep in mind that the US is a common law system. This means that courts look to prior court decisions to determine the law applicable to a particular case. And if there are no decisions on the issue, the court is free to craft the applicable rule of law. Even when a statute is controlling, courts create a body of judge made law on the meaning and interpretation of that statute as they decide disputes involving it. But this does not mean judges are absolutely free to decide cases however they see fit. The judges are bound, as in any common law system, to follow previous decisions on the same issues made by courts in their jurisdiction superior to them, a concept known as stare decisis. Courts also usually consider as ‘persuasive’ decisions of courts at the same level or in different jurisdictions. This is the concept of ‘precedent’.  But I will give you that the common law is flexible in the sense that judges can deviate from precedent and stare decisis if the case before them has a significant difference from the prior case that justifies, in the judge’s mind, a different result. But this flexibility gives the law room to develop and grow where social or societal norms have changed.

Rob: Again, Canada essentially is similar to the US in many respects. With the exception of the province of Quebec, Canada is a common law jurisdiction. However, the concept of precedent and stare decisis is the same for all provinces. While Quebec is a civil code jurisdiction it differs from other civil jurisdictions in that precedent and stare decisis also apply. That said, Canada is not a jurisdiction of ‘judge made’ law. Most areas are governed by statutory law with the exception of some areas such as tort law and contract law. Labour law is an example of a hybrid of statute law and common law.

Fernando: Mexico is different from both Canada and the US. We are a civil law country, which means that our codes and laws are intended to be applicable to almost all situations that may arise day-to-day, leaving courts and lawyers with a very reduced margin for legal interpretation. Due to this our codes and laws are extremely long and detailed in an effort to regulate everything. In the absence of regulation and provisions, courts are not that free to create their own criteria. They need to follow the rules of interpretation established in the law and find a solution to the case with the law as it is. The concept of stare decisis is not fully recognised in Mexico. However, the Mexican judicial power has established a form of binding precedent, known as the ‘jurisprudence’, which is established when a court rules in five consecutive and consistent occasions in the same sense about any matter. Once the jurisprudence is established, it is binding on the court that established it and all lower courts. In that line, the only way in which a jurisprudence can be binding to all the Mexican judicial power is if it is established by the Supreme Court.

Richard: What is interesting is that notwithstanding the many differences in the three systems there also are so many similarities.

Fernando: American Federalism has definitely made an impact in North America. In my opinion, it makes sense that such vast and diverse countries like Mexico and Canada have adopted many of its features.

Rob: While the political and judicial systems have some marked differences, that makes it even more noteworthy that the laws of the US and Canada are very similar. However, in recent years some significant divergence has emerged in areas such as the environment, health care and human rights.