Cesare Cavallini (Bocconi University – Department of Law) has posted Activism Without Supremacy: Entrenchment, Reversibility, and the Architecture of Judicial Power on SSRN. Here is the abstract:
American constitutional law has developed a form of governance whose cumulative distributional effects rival those of the most significant rights decisions of the last half-century, yet without a name in the existing literature. That condition is procedural supremacy: judicial authority exercised through control of litigation infrastructure: pleading standards, burden allocation, forum selection, and arbitration enforcement, that produces constitutional effects while evading constitutional accountability. The Supreme Court’s transformation of pleading in Twombly and Iqbal, its expansion of mandatory arbitration through AT&T Mobility and Epic Systems, and its development of qualified immunity reconfigured who may litigate, under what conditions, and with what prospect of relief; none generated a meaningful democratic response. The invisibility is structural: procedural supremacy is doubly insulated from correction, by political invisibility and by constitutional framing that places its holdings beyond ordinary legislative reach.
An entrenchment/reversibility framework reorients comparative constitutional analysis from formal taxonomies to the functional question that determines democratic legitimacy: how durable are judicial settlements, and through what pathways can they be corrected? The framework is falsifiable, and Italian civil procedure provides the test: the Court of Cassation reshaped the res judicata and claim-modification doctrines with interpretive ambition comparable to Twombly, yet without conferring supremacy. Three structural features account for the difference: the statutory rather than constitutional grounding of procedural holdings, the working of legislative override as a genuine corrective mechanism, and an external review circuit through the Court of Justice of the European Union. Three institutional modifications follow logically: affirmative congressional ratification of procedural innovations with systemic distributional effects, institutionalized empirical review of major procedural decisions, and a strengthened constitutional avoidance principle in procedural cases. Each targets a specific entrenchment mechanism; none is derived from Italian practice; whether each should be adopted is a question for democratic deliberation rather than for constitutional theory.
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Lawrence Solum