The Italian Law Journal | ItaLJ

2 THE ITALIAN LAW JOURNAL NO. 2 (2016)

 

ESSAYS

The Italian Reform of the Law on Filiation and Constitutional Legality

by C. Cicero

There is a tendency within modern legal systems towards mitigating or eliminating the differences between filiation within or outside of wedlock. The Italian law on filiation has been subject to important reforms driven by constitutional law, with the aim of guaranteeing equality between children. The endpoint of this legislative process has been to stipulate one single status for all children. [...]

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Confidentiality and the (Un)Sustainable Development of the Internet

by M. D'Ambrosio

The right to privacy is compromised on a daily basis by the commercial practices of today’s information society. The Schrems case is an example of the risks of the processing of personal data on the internet. The European regulatory system for the protection of personal data cannot ensure effective protection of its citizens’ information. Therefore, this article proposes a reconceptualisation […]

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The Italian Class Action: 
New Paradigm or ‘Much Ado about Nothing’?

by C. d'Orta

For several years there has been an increasing awareness that in order effectively to protect consumers’ rights, it is necessary to improve legal action through the use of more adequate tools. This has stimulated efforts by policy makers and regulators worldwide to introduce actions for damages in their legal systems in the wake of the US experience of the class action […]

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Good Faith and Pre-Contractual Liability in Italy: Recent Developments in the Interpretation of Article 1337 of the Italian Civil Code

by T. Febbrajo

In Italy, pre-contractual liability is governed by a statutory provision that requires parties to act in good faith during the negotiation and formation of the contract (Art 1337 Civil Code). Nonetheless, since the entry into force in Italy of the current 1942 Civil Code, Art 1337 has been consistently given a narrow interpretation. From this narrow perspective, pre-contractual liability applies only in two cases […]

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Transfer of Ownership and Preliminary Agreements

by P. Gallo

This work aims to provide a contribution to the standardization of European law in the field of transfer of ownership. At first sight, the European scenario appears to present a very marked contrast between the French model of transfer of property based on the contract (titulus), and the German one, which is based on delivery (modus). […]

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International Issues Regarding Surrogacy

by I. Kriari and A. Valongo

The global spread of surrogacy and the changes to the concept of family resulting from historical, social and cultural factors should lead lawmakers to address the issue of children born through this procedure. This should draw both on the most recent academic literature as well as an interdisciplinary perspective. The purpose of this article is to propose solutions on an international level […]

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Liquid Citizenship — Citizens’ Rights in the European Union

by M. La Torre

My paper is structured in three sections. In the first, I will introduce a debate about the form of the modern State in terms of a ‘conditional’ and ‘purposive’ programme. This debate was particularly acute in the late Seventies and Eighties, and gave rise to an alternative presented as ‘responsive’ or ‘reflective’. However, and this is my point in this first section, this alternative in a context of globalisation […]

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Machine Rules. Of Drones, Robots, and the Info-Capitalist Society

by G. Noto La Diega

Italy has been one of the first countries in the world to enact ad hoc regulations on drones. Therefore, the Italian approach may constitute a model for many regulations to come; nonetheless, the legal literature seems to overlook the phenomenon. In this article, I place the discourse on drones in the context of some more general considerations on the main legal issues […]

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Making a Centralized System of Judicial Review Coexist with Decentralized Guardians of the Constitution: The Italian Way

by P. Passaglia

In the aftermaths of World War II, a mechanism for constitutional review was set up, to provide the system with means of reacting against infringements of the Supreme Law. Even though a Constitutional Court was established, the Italian system of constitutional adjudication is only partially inspired by Kelsen’s centralized model: […]

 

ITALIAN-EUROPEAN LEXICON

The Notion of ‘Cultural Diversity’ in the EU Trade Agreements and Negotiations: New Challenges and Perspectives 

by L. Bellucci

This article analyses the notion of ‘cultural diversity’ as adopted within and adapted for the European Union’s (EU) external trade relations. Its law in context approach, underlines the socio-political framework in which the notion of ‘cultural diversity’ has taken shape, and the conflicting interests involved in its negotiation, promotion and protection.  […]

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A Critical Comparative Analysis of Online Tools for Legal Translations

by P. Giampieri

In the current fast-paced digital world, legal translators are often confronted with a vast array of online resources that they can hardly use or understand. This paper aims to outline some of the pitfalls arising from the Internet for legal translators and the shortcomings of some online tools. In particular, it will analyse and compare online dictionaries, fora, […]

 

MALEBOLGE

Carolene in Reverse
Contractual Interpretation for Dismantling the Dictatorship of ‘Discrete and Insular Minorities’ in Transnational Private Ordering Regimes

by P. Femia

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Some Inconvenient Truths About Antitrust Law and Economics

by J.L. Harrison

United States’ antitrust policy and, to a lesser extent, that of the European Union stress three economic goals – consumer surplus, allocative efficiency, and productive efficiency. When they are discussed or debated, antitrust scholars omit a number of points that undercut their desirability. This Essay describes them briefly and highlights their frailties.  […]

 

HARD CASES

The Social-Environmental Function of Property and the EU ‘Polluter Pays’ Principle: The Compatibility between Italian and European Law

by V. Corriero

This article analyses the legal scholarship and Italian jurisprudential debate over the obligations imposed on an owner who is not the polluter of a contaminated site, a debate which culminated in a landmark decision by the European Court of Justice on 4 March 2015. The ‘social-environmental’ function of property provides the most appropriate balance […]

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The Worthiness of Claims Made Clauses in Liability Insurance Contracts

by S. Landini

The Italian Supreme Court has ruled on the worthiness control of clauses in insurance contracts and particularly of the claims made clauses contained in insurance policies against professional liability. This essay examines the conclusions of the Court with some considerations about the issue of the adequacy of the insurance products in respect to the needs of policyholders. […]

 

BOOK REVIEWS

Guido Calabresi’s The Future of Law & Economics

by R.A. Porrata-Doria and M. Grondona

 

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2 THE ITALIAN LAW JOURNAL NO. 1 (2016)

 

HISTORY AND PROJECT

Utilitarianism and Retributivism in Cesare Beccaria

by M. De Caro

In analyzing Cesare Beccaria’s theory of punishment, this article emphasizes that, while he clearly endorsed a proto-utilitarian theory of punishment strongly at odds with positive retributivism, he also accepted some elements of negative retributivism. This fact, however, should not be seen as weakness of Beccaria’s view, but as another proof of his genius. As a matter of fact, he acutely understood that a purely utilitarian conception of punishment [...]

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On the Importance of Sharing National Law so as to Shape Future Trans-National Legal Solutions

by D. Wallis

 

ESSAYS

The Performance of the Italian Civil Justice System: An Empirical Assessment

by R. Caponi

The unreasonable length of Italian civil proceedings goes on filling pages of newspapers and magazines. According to some authoritative views, the inefficiency of the civil justice system helps explain why the Italian model of legislation and scholarship in civil procedure is not as influential on the European scene as it was in the past. Interestingly enough, a nearly diametrically opposed thesis has also been advanced, […]

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Post Rule of Law: The Structural Problem of Hybridity in International Criminal Procedure

by K.B. Carlson

The value of developing hybrid international criminal procedure (ICP) is that it is arguably inclusive (representing two major legal traditions) and distinct from any domestic system, thus creating a separate, sui generis realm for international criminal law (ICL) jurists to meet. Since its inception at Nuremberg, individual elements of hybridity have consistently caused concern amongst practitioners and legal theorists, largely around questions […]

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Rethinking the Juridical System. Systematic Approach, Systemic Approach and Interpretation of Law

by F. Caroccia

The juridical system is not the essence of the things, it is an artificial organisation of elements, following a certain idea. It is conceived to settle conflicts, in order to find the solution that is more consistent with that original idea. In the juridical perspective, the logical coherency of the system becomes the necessary guarantee for non-arbitrary decisions. The present work is aimed at verifying this thesis, […]

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Instances of Civil Law in North American Common Law Tradition:
Cause and Consideration in Quebec and Louisiana Civil Codes

by F. Delfini

A practical comparison between the two main legal system families can profit from some unique instances of civil law that lie in the vast North American continent. Reference is made to Quebec, for Canada, and Louisiana, for the US. Both locales are part of federal states ruled mainly by common law. The Canadian and US legal systems embed civil codes that refer to and define a requirement for the validity of the contract, the cause, that European civil codes mentioned, but did not dare to define. […]

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Rationality and Counterfactual Legal Analysis

by A. Estella de Noriega

The aim of this article is to argue that counterfactual legal analysis should be used as a primary method in judicial interpretation of legislation. The article examines this issue assuming a rationality setting in which law is understood as a credibility device. Judges should show deference to the legislator when counterfactuals have been foreseen by the latter; in contrast, they might substitute their own judgment […]

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Directive 2014/104/EU on Antitrust Damages Actions.
Some Considerations from the Perspective of Italian Law

by A. Nervi

European Parliament and Council Directive (EU) 2014/104 of 26 November 2014 introduces a common regulation for claims for damages caused by infringements of competition law. The implementation of the Directive in the Italian legal system may face some issues from a civil law perspective. One of these issues is the role of the judge in the evaluation of the claim for damages, especially in consideration of the restrictions […]

 

ITALIAN-EUROPEAN LEXICON

Training Young Lawyers in the European Mediation Framework: It’s Time to Devise a New Pedagogy for Conflict Management and Dispute Resolution

by L. Cominelli

Mediation as a dispute resolution method is being rediscovered today in Western legal systems. Modern jurisdictions now tend to promote mediation according to a ‘formal legislative approach’, based on recommendations issued by international organizations, in response to the pressure of public opinion that shows discontent with constant crisis in the justice system. […]

 

HARD CASES

Uber and the Sharing Economy

by A. Di Amato

Sharing economy is an economy system in which assets or services are shared between private individuals, either for free or for a fee, typically by means of the internet. It consists of two different business models. The first business model is the offering of goods or services by businesses through internet and/or mobile apps. In the second business model, business entities create a web platform where […]

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Italy and Kafalah: Reinventing Traditional Perspectives to Accommodate Diversity?

by A. Marotta

In September 2013, the Italian Court of Cassation introduced a new principle: in certain well-defined circumstances, local authorities cannot refuse to issue entry visas, for purposes of family reunification, to foreign minors taken under kafalah by Italian citizens residing in Italy. The Court was asked to determine whether it was possible to place Italian and foreign citizens on the same level in matters of kafalah and family reunification. […]

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The Prohibition of Gametes’ Donation: When the Constitutional Court ‘Decides to Decide’

by E. Prascina

The paper addresses the prohibition on gamete donation, which was recently revoked by a landmark judgment of the Italian Constitutional Court. In the first part, it explores the social and cultural context to and political debate regarding the Italian law on medically assisted reproduction. It then sets out a framework for analysing the progressive erosion of the ban. It presents the Court’s clear intention finally to adopt a position, […]

 

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1 THE ITALIAN LAW JOURNAL NO. 2 (2015)

 

HISTORY AND PROJECT

Antigone and Portia (1959)

by T. Ascarelli

The problem of the law is a problem of all men, and is one that each of us must confront on a daily basis. Therefore, maybe, when symbolising its terms, we can call upon wise men before appealing to academics, and upon poets before turning to scholars. And this is why the mind naturally shifts its focus onto what is, possibly, the most perfect of all plays: Sophocles’ Antigone [...]

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What Is to Be Done? Tullio Ascarelli on the Theory of Legal Interpretation

by C. Crea

The teachings of Tullio Ascarelli, a well-known scholar of commercial law and of comparative law on the international scene, has left a lasting mark on Italian legal culture insofar as they are one of the most elegant and complex expressions of the ‘revolt against formalism’ and the need to go beyond the folklore of the ‘old Italian style’. The centrality of the theory of legal interpretation […]

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In Memoriam: Professor J.H. Merryman

by C. Amodio

This section of ‘The Italian Law Journal’ ends on a sad note. John Henry Merryman, a long time Professor at the Stanford law faculty, an internationally renowned figure in comparative law, a path-breaking scholar in that he was, inter alia, the first common law trained lawyer to explore our legal system, passed away at the age of 95, on 3 August 2015. Native of Portland, Oregon, Merryman joined the Stanford law faculty in 1953 [...]

 

ESSAYS

Transnational Economic Constitutionalism in the Varieties of Capitalism

by G. Teubner

Notwithstanding the ordoliberal theories and the theories critical of a world ‘economic constitution’, globalization has not produced a unitary economic constitution, but a fragmented constitution of collisions: ie a metaconstitution of constitutional conflicts, whose conflicting units are no longer the national States, but the regimes of transnational production.  The alternative (developed for national States by Franz Böhm and […]

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Structured Error. Case Study on a Discourse Logic of Comparative Law

by B. Lomfeld

Taking legal reactions on errors in contract formation (the ‘law of errors’) as a paradigm, this case study outlines the method of a ‘discursive comparative law’. Following a critical view on the prevailing methods of comparative law (I), the essay explores the idea of ‘deliberative comparisons’ between legal cultures (II). A ‘discourse logic’ compares structures of legal argumentation in different jurisdictions and reveals its […]

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Discussing a Reform of the Senate. A Comparison between Italy and Canada

by E. Arban

In March 2015, the Italian Chamber of Deputies voted on a far-reaching constitutional reform; assuming a successful outcome of the long and complex amendment iter, this reform will have the effect to radically alter (among other things) the role, nature and composition of the Senate and of the perfect bicameral system currently in place. Interestingly enough, Italy is not the only country currently engaged in a political and institutional […]

 

MALEBOLGE

Right to the City or Urban Commoning? Thoughts on the Generative Transformation of Property Law

by U. Mattei and A. Quarta

The economic and political transformations determined by the rise of neoliberalism are usually studied at a state dimension, while the urban one is quite ignored. Nevertheless, the government of the city has been influenced by global and national recent changes and all the municipal sectors have been touched by the austerity’s recipe. The decrease of urban public spaces, their privatizations as well as gentrification transform city planning […]

 

HARD CASES

The Flow of Personal Data on the Internet: The Italian and European Google Cases

by F.G. Viterbo

The recent judgement of the European Court of Justice of 13 May 2014 (hereinafter: the Judgement) focused on the activity of the Google platform as a provider of indexed content, including personal data; this activity consists of locating information published on the web by third parties, indexing it automatically, storing it temporarily, and finally, making it available to internet users according to a particular order of preference. The Court has […]

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Are Foreigners Entitled to a Right to Housing?

by L.E. Perriello

Under the reciprocity clause set forth by Art 16 of the Provisions on the Law in General, foreigners are entitled to the same civil rights as citizens, as long as such rights are afforded to citizens in the foreigners’ countries of origin. Still, Art 16 must be constitutionally interpreted so as to accomplish the full protection of human rights. Therefore, reciprocity does not apply to the fundamental rights. Therefore, reciprocity does not apply to the […]

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1 THE ITALIAN LAW JOURNAL NO. 1 (2015)

 

HISTORY AND PROJECT

The Italian Law Journal: Challenges and Opportunities 

by G. Calabresi

An Italian Law Journal, published biannually online in English, with an advisory board comprising not only of the most distinguished of European Scholars, but also of significant ones from Brazil, China, Japan, and the United States, and focusing on private law! One can only imagine what – formalist, totally 19th Century Code centered, but still very great – Italian scholars of not so long ago, would be saying about the enterprise! [...]

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Criticism. From the Outskirts of a World Without a Centre

by P. Femia

On February 1433 at the university of Pavia the humanist Lorenzo Valla attacked the eminent jurist Bartolo da Sassoferrato, arguing that contemporary legal thinking was intellectual garbage. Jurists, all bartolians, forced him to leave the university. Symbol of a division that has never really been resolved, this story provides two dialectical images for an exercise in counter-narcissism for legal scholars. Valla and Bartolo show us the salvific [...]

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Constitutional Norms and Civil Law Relationships

by P. Perlingieri

This essay provides a critical account of the long-established scholarly views according to which constitutional norms have a merely programmatic nature, inapt to be directly applied in private law relationships and hence to be utilized as hermeneutical tools when interpreting statutory law. Instead, as this essay shows, courts make use of constitutional norms extensively, applying them not only indirectly – that is in the presence [...]

 

ESSAYS

Data as Tradeable Commodity and New Measures for their Protection

by A. De Franceschi and M. Lehmann

Information, particularly important, significant and relevant information, as illustrated by current Big Data or Wikileaks and Prism or more recently Tempora, is today’s ‘digital gold’. From an economic perspective it is therefore relevant to know whether and what kind of data content can be protected. The key question to be answered is therefore whether data can be recognised in law as ‘protectable rights’. In the digital world, data [...]

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The Procompetitive Interpretation of Italian Private Law

by F. Longobucco

This paper investigates the opportunity of a Procompetitive interpretation of Private Law through an interdisciplinary analysis of Competition Law with Contract Law. The purpose of the research is to demonstrate that the traditional Civil Law might be differently considered and interpreted in the specific market where contractual obligation arises. Under this point of view, for example, it is necessary to adopt a new approach [...]

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Children Born Out of Wedlock: The End of an Anachronistic Discrimination

by A. Valongo

After a historical and comparative overview regarding the discrimination of children in the perspective of the European Court for Human Rights, the aim of the paper is to examine an important shift that international standards and conventions have recently brought about in the Italian landscape of filiation: the Italian law reform 2012-13, which is designed to abolish the legal disabilities of all children born from both married and [...]

 

ITALIAN-EUROPEAN LEXICON

Reasonableness

by S. Zorzetto

Reasonableness is a popular notion in the current European legal thinking and jurisprudence. As is well known, its uses are widespread in all subjects though its real meaning is still open to debate. Many different interpretations and uses coexist in common parlance. In particular, its boundaries in private law with good faith, fairness, due care, proportionality, rationality, equity and similar evaluative notions have still to be clarified. According to [...]

 

HARD CASES

​Remedy for Fraud in Cir vs. Fininvest: Damages or Specific Performance

by S. Pagliantini

The Supreme Court’s judgment ruling in favour of Cir’s independent action for damages against Fininvest brings to an end proceedings that originated from a judicial decision setting aside the Mondadori arbitration award, a decision that Fininvest had obtained by bribing one of the judges and that had led Cir to reach an out-of-court settlement of the dispute. As far as the Supreme Court is concerned, that settlement is valid and the harm [...]