THE JUDGE POSNER’S DOCTRINE AS METHOD TO REFORM THE ITALIAN CIVIL JUSTICE

Abstract

This article represents a preliminary and methodology-oriented effort to conduct an economic analysis of the Italian civil justice system, commonly perceived as inefficient and proposes a different approach. More specifically, it demonstrates how the failure of several Italian legal reforms was based on methodological errors, which led to the inefficiency of the system itself. Accordingly, it proposes an alternative in methodology. For the mentioned purpose, it shall use the theories and methods studied by Judge Posner concerning the judiciary system. In particular, it shall evaluate if the Posnerian methodology could be applied to the reforms to come from the Italian judiciary system. The evaluation is carried out by assessing the behavior of judges, lawyers, and litigants based on the theory of wealth maximization. We highlight that this article is not intended to give specific solutions to the efficiency issues of Italian civil justice. Nonetheless, these pages contain examples and references that demonstrate how the application of this methodology to various Italian rules of the judiciary system could impact its efficiency. These examples represent the adaptation of Posner's applications into the Italian system, based on his concept of efficiency applied to specific Federal procedural rules concerning judges, lawyers, and litigants.