Cesare Cavallini (Bocconi University, Department of Law) has posted Appellate Architecture As Constitutional Design: A Comparative Perspective On The Regulating Court on SSRN. Here is the abstract:
Italian civil procedure is a constitutional argument waiting to be read. This Article reads it. Three structural features of the Italian appellate system bear on questions of general significance that American procedural scholarship has addressed almost entirely within its own institutional frame: the epistemological foundations of second-instance review, the conditions under which judicial creativity remains democratically controllable, and the functional transformation of the Court of Cassation toward a regulating institution. Each produces findings that complicate prevailing assumptions. Full merits appeal is defensible not as a cultural residue but as an epistemological necessity: restricting second-instance courts to supervisory review of judicial reasoning contradicts the adversarial premise on which such proposals rest. The Court of Cassation’s record of creative-evolutionary adjudication demonstrates that interpretive ambition and democratic controllability are structurally compatible, a conclusion previously established through the entrenchment/reversibility framework and here applied to the architecture of intermediate and supreme court review. And the Court of Cassation’s progressive shift toward selective, systemic intervention reflects a functional convergence with apex courts in the United States and the United Kingdom that the dominant subjective account of cassation jurisdiction cannot explain. The Article draws no proposal for the wholesale redesign of either system’s appellate architecture. Its contribution is analytical and, on two points, normative. The first is corrective: the proposal to reconceive Italian appellate review as supervision of first-instance reasoning rather than reconsideration of the merits contradicts the adversarial premise it invokes. The adversarial epistemology that grounds both systems supports full merits review in the second instance no less than the first. The second follows from the regulating court model itself: if the Court of Cassation already functions as a regulating institution, the current formulation of Article 360(5) of the Code of Civil Procedure is constitutionally permissible but institutionally misaligned with the function the Court has assumed, a narrow implication rather than a reform program. These findings, and the comparative analysis of judicial creativity and apex court governance that supports them, demonstrate that the institutional arrangements American proceduralists treat as default settings are choices whose justifications must be supplied, not assumed.
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Lawrence Solum