Towards an Open Constitutional Adjudication? Reconsidering Third Parties Interventions and Amici Curiae in Front of the Challenges for Constitutional Justice in the 21st Century
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The article considers an unresolved aspect of constitutional adjudication in Italy, namely the highly «flexible» approach of the Court to third-party intervention coupled with the closure towards amici curiae. The Court prefers to avoid or minimize formalized contact with interest groups and experts that could bring to a formal dialogue with these actors. It favors instead informal solutions that could enhance its discretion in the use of arguments, at the expenses of transparency of the proceedings and of the reasoning. Against this background, the article aims at providing a comparative overview of the tendencies existing in different national contexts. It shows that in most systems of constitutional review there is a move from «close» to «open» procedures. It argues that, considering the new challenges constitutional justice faces in the 21st century, the time has come for the Italian Constitutional Court to embrace a transparent and formal relational approach to external subjects and materials, for the sake of its legitimacy. The article proposes some procedural innovation in order to balance the openness of the proceedings with the necessity of an efficient constitutional adjudication.