The Chinese Advantage in Emergency Law

This Article has a twofold purpose. On the one hand, it offers comparative materials for an informed discussion of COVID-determined emergency law in China and Italy by assessing its normative implications and political genealogy. On the other hand, it explores the essential contiguity between the ‘state of exception’ triggered by the pandemic and the possible geopolitical shifts in global legal hegemony in the actual phase of surveillance capitalism which is witnessing a decline of law as a form of social organization and its replacement by the predictive models elaborated by technology. In this respect, the traditional Western iconography has long described the Chinese legal tradition as a “law without law”, a despotic regime with intrusive population surveillance whose distance from the Western paradigm is deemed almost unbridgeable. And yet the legal response to coronavirus both in Europe and in the U.S. somewhat replicates the allegedly distant Chinese model in terms of restrictions and surveillance mechanisms which are being deployed to counter the crisis in the face of a formal commitment to the rule of law. This Article concludes that the emerging pre-eminence of the “rule of technology” over the “rule of law” in a critical event of historic proportions like a pandemic should and will set the future agenda of comparative studies in a double direction. On the one hand it calls for a truly critical reconsideration of role of law in society which in turn impels to rethink the hold of the liberal constitutional model and the obsolescence of traditional legal taxonomies. On the other hand, it might point to the emergence of an unexpected Chinese legal leadership, determined by the progressive undoing of the Western legal and political narratives whose backbone has been relentlessly eroded by decades of neoliberalism and populism

Issue preclusion out of the U.S. ? : the evolution of 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 if 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 a meaningful dialogue between common lawyers and civil law scholars on the topic. This Article confronts the said assumptions and, by comparing Italian and US law, aims to yield new critical insights into the topic