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Abstract

This essay explores the phenomenon of judicial activism in the United States, focusing particularly on procedural aspects, from a comparative perspective influenced by the civil law tradition, especially the Italian legal system. While American legal discourse often criticizes judicial activism as an overreach by the judiciary—sometimes calling it “imperialist” in relation to recent Supreme Court decisions—this work reinterprets the concept through the more subtle mechanisms of procedural intervention. I argue that activism should not be viewed solely through the lens of constitutional interpretation or resistance to precedent. It should also consider judicial actions that reshape procedural norms, such as pleading standards, summary judgments, and sua sponte interventions.

Through a critical evaluation of landmark U.S. decisions (e.g., Twombly, Iqbal, Celotex), the essay explores how procedural judicial activism operates at a systemic level to recalibrate access to justice, judicial efficiency, and litigation strategies—often without direct legislative input. These shifts, while controversial, are presented as responses to structural challenges rather than purely ideological intrusions.

The paper then extends this inquiry into the European context, presenting the Italian Supreme Court's recent jurisprudential developments as evidence that procedural activism is not a uniquely American phenomenon. Cases from Italy demonstrate how courts have engaged in de facto judicial legislation, particularly in redefining res judicata, introducing issue preclusion doctrines, and expanding sua sponte judicial powers, even when such practices contradict the textual provisions of the civil procedure code.

Ultimately, procedural judicial activism, far from undermining the rule of law, may serve as a necessary vehicle for modernization within common law and civil law systems. The essay calls for re-evaluating the concept that moves beyond ideological critique and toward recognizing its pragmatic and systemic dimensions in the contemporary administration of justice.

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