The Italian Law Journal | ItaLJ

3 THE ITALIAN LAW JOURNAL NO. 1 (2017)

 

ESSAYS

Is Libertarianism Thick or Thin? Thin!

by W.E. Block and K. Williamson

Thin libertarianism, and only thin libertarianism, is valid libertarianism. Thick libertarianism is actually an attempt to hijack real, or thin, libertarianism. The present paper is devoted to stopping thick libertarianism in its tracks. We take as foils thick libertarians Johnson (2013) and Tucker (2014) and demonstrate that their thick libertarian views are contrary to true libertarianism. [...]

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The Civil Responsibility of the Italian Judiciary: A Double Speed System

by A. Cilento

This work illustrates the critical issues regarding the civil responsibility of Italian judges as regulated by legge 27 February 2015 no 18,  modified by legge 13 April 1988 no 117 on compensation for damage arising in the execution of judicial office and the civil liability of judges. […]

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Justice, Fault, and Efficiency in Contract Law 

by L.A. DiMatteo

This article explores some of the core concepts that underlie contract law. It rejects the feasibility of a uniform theory of contract law including a critique of the economic analysis of contract law. The importance of efficient contract rules and efficient contracts is not disputed, but efficiency’s explanatory power is limited due to the breadth of contract law, as well as the complexity […]

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On Abuse of Rights and Judicial Creativity  

by N. Lipari

The abuse of rights doctrine, which has received renewed attention in the judicial and scholarly debates, raises the fundamental tension between the formal attribution of a right and the concrete exercise of that right. In this article, the Author argues that the abuse of rights paradigm should not be reduced to asking only whether conduct is legal or illegal. […]

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Marital Contracts and Private Ordering of Marriage from the Italian Family Law Perspective

by R. Montinaro

The essay is centred on the role played by private ordering in regulating the financial terms of marriage dissolution. The Italian legal scholars’ attitude regarding this issue has changed over time. It has transformed from a paternalistic perspective, mostly rejecting the spousal parties’ freedom, to a novel view that favours an expanded role for contracts to determine […]

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Functions of Soft Law in Transnational and Local Governance: A Case of the Land Rush in the Mekong Region

by N. Okano

This paper analyzes land law history in the Mekong region, a recent land rush there, and the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests (VGGT), a soft law measure on governance of tenure. This work will generally illustrate recent developments of land governance. […]

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Legal Principles and Values 

by P. Perlingieri

This paper analyses in depth the distinction between values and principles in light of the process of legal interpretation. The logical and legal status of principles are examined from a conceptual standpoint at the outset, as well as the slippery border between principles and values and the interplay between law, politics and ethics. […]

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The Legal Anatomy of Electronic Platforms: A Prior Study to Assess the Need of a Law of Platforms in the EU

by T. Rodriguez de las Heras Ballell

Digital economy is nowadays a Platform economy. This pervading expansion of platforms has been triggered by their value-creating ability and trust-generation potential. The emergence and increasing popularity of disruptive models, such as sharing-based economy, crowdfunding or fintech variants, have been greatly accelerated by platform-based solutions. […]

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Constitutional Values and Judge-Made Law

by G. Scaccia

The Author contends that value-oriented constitutionalism marks a shifting of law making function from political bodies to the Courts. In fact judges act as legislators for the concrete case: they have to dispense justice according to law, but law is made up of constitutional values which can be implemented in multiple and, at times, opposite ways. […]

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Horizontal Effects of Constitutional Rights in the Internet: A Legal Case on the Digital Constitution

by G. Teubner

This article discusses whether websites criticizing the environmental policies of multinational enterprises are protected by horizontal effects of human rights and develops three theses: (1) The third-party effect has so far been configured in an individualist perspective only, as balancing individual constitutional rights of private actors against each other. […]

 

HARD CASES

Same-Sex Adoptions: The Italian Case

by M. Farina

In the judgment discussed in this paper, the Court of Cassation endorsed a broad interpretation of Art 44, para 1, letter d), legge 4 May 1983 no 184, such as to allow ‘adoption in special cases’ to homosexual couples. The legal recognition of the parental relationship developed between the child and the partner of the biological parent is rooted in a constitutionally-oriented interpretation, […]

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The Child’s Surname in the Light of Italian Constitutional Legality

by L. Tullio

The Italian Constitutional Court declared unconstitutional the legal rule that every child must be attributed the father’s surname at birth or adoption or in case of recognition by both parents (joint recognition), and cannot also be attributed the mother’s surname, even if requested by both parents. This article examines the legal arguments raised by the Court, […]

 

CONSTITUTIONAL COURT WATCH

Presentation

by P. Grossi

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Methods and Purposes of the Constitutional Court Watch

by P. Passaglia

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ITALIAN CONSTITUTIONAL COURT’S SELECTED JUDGMENTS OF 2016