Issue Preclusion Out of the U.S. (?) The Evolution of the Italian Doctrine of Res Judicata in Comparative Context

Most scholarly works on res judicata rest on two long-established assumptions: (i) the scope for the preclusive effects of previously rendered judgments upon subsequent proceedings is rather narrow in civil law systems compared to the extensive approach that characterizes the common law tradition especially in its U.S. epiphany; (ii) the very idea of issue preclusion is generally said to be absent or rejected in the civil law world. Accordingly, this alleged divergence has over time discouraged the development of a meaningful dialogue between common lawyers and civil law scholars on res judicata. This Article confronts these assumptions and aims to yield new critical insights into the topic by comparing Italian and U.S. law. This idea stems from a path-breaking line of decisions by the Italian Supreme Court that has significantly extended the scope of res judicata to gradually open to some form of issue preclusion. Indeed, irrespective of a long dogmatic tradition, these “grands arrêtes,” together with few critical scholarly voices, have prompted a reconceptualization of res judicata, pointing out a potential rapprochement between the Italian and American solutions. By placing this hermeneutic evolution within a wider comparative context, it is possible to challenge the traditional narrative propounding issue preclusion as a preserve of the common law world and to unveil new common grounds for discussion on res judicata within the Western legal tradition.