Ricerc@Sapienza

The paper deals with the idea of binding precedent in constitutional adjudication, addressing the case of the US Supreme Court jurisprudence. Moving from its recent conflicts on the issue, especially exacerbated by the originalist polemics, the paper aims at tackling the most conventional assumptions surrounding this common law experience. It pauses on the absence of shared understandings of the stare decisis doctrine and advises for a deeper theoretical commitment in its uses related to the constitutional interpretation.

Commento alla sentenza Franchise Tax Board of California v. Hyatt, 587 U.S. ___ (2019): un caso particolare di superamento dello stare decisis

The author affords a picture of the recent scholarly debate between those advocating a return to the concept of legal certainty typical of the continental positivistic tradition and those denying such possibility, with the aim of demonstrating that both these perspectives reflect the need of taking a position vis-a-vis the institutional conflicts currently opposing judges to legislators. According to the author, both these scholarly assumptions not only are biased by such need, but tend to neglect the effective challenges which judicial ‘creativity’ raises for constitutionalism.