AUSILIARI DEL GIUDICE E GESTIONE DELLE CONTROVERSIE CIVILI COMPLESSE

This study concerns the role, use and function of judicial adjuncts in litigation before United States federal courts, with specific attention to the so called Master or Special Master. In order to explore the subject a double perspective has been adopted. On one side, a historical perspective was used to investigate the origins of Masters, looking back at their English inception in the context of Chancery Court and equity jurisdiction, and later in the area of equity procedure in the early days of American law through the XVIII Century. A particular attention has been given to the emergence and the development of Masters in the context of federal equity procedure as in the different sets of Federal Equity Rules of 1822, 1842 and 1912. Eventually, the study focuses on the role of Masters in the Federal Rules of Civil Procedure of 1938, with specific attention to Rule 53 and its recent amendments in 2003. On the other side, a comparative perspective was adopted in order to understand the circulation and transplant of English institutions, traditions and rules such as those concerning Masters, to the American English colonies, as well as the reason of their persistence in the context of American Federal Rules. The same approach was used reasoning on the absence of subjects like Masters in the Italian system and to get some possible useful suggestion from the American experience on this respect. As to the results of this work, Masters seem to have a common reason to be in the Anglo-American tradition: that of helping the judge (i.e. the Chancellor, the Equity Court, the Federal Court) to cope efficiently with its judicial function. In the past such function was mainly related to the extreme scarcity of judges and therefore with the need for an adjunct to perform duties the judge wouldn’t be able to handle. In this perspective the Master was mainly used in the preparation of the case, for taking testimony, receiving oaths, making accountings, hearing and determine different fact issues. This was true, at least until the XX Century when, beginning with the Federal Equity Rules of 1912, its role was gradually reduced to be suitable with a new adversary procedural context. As a matter of fact, after the merger of common law and equity in the United States, the use of Masters was admitted only under exceptional conditions and their function was almost completely reconsidered. The use of judicial adjuncts and Masters in particular seems though to have come to new life under the pressure of complexity and, in particular, in the context of complex litigation. The use of adjuncts in big complex cases has offered since the second half of the XX Century a useful tool for case management. Master has been thoroughly used in the pretrial phase of mass tort litigation, class action and public law litigation, proving of big help in the management and control of the discovery process. Such function was later confirmed by the 2003 amendments to Rule 53 of the Federal Rules of Civil Procedure, recognizing such a central function of Masters in federal litigation. The use of Masters is today tightly linked to the notion of complex cases. And their function seems to be a possible efficient solution to the problem of complexity in civil procedure.