The Italian Law Journal | ItaLJ

7 THE ITALIAN LAW JOURNAL NO. 2 (2021)

 

HISTORY AND PROJECTS

From Pluralism to the Material Constitution and Back

by M. Croce and M. Goldoni

It is a pleasure and an honour for us to produce this Introduction to the symposium that The Italian Law Journal has kindly devoted to our recent book The Legacy of Pluralism: The Continental Jurisprudence of Santi Romano, Carl Schmitt, and Costantino Mortati (Stanford: Stanford University Press, 2020).  [...]

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The Will to Order: In Conversation with Mariano Croce and Marco Goldoni on Costantino Mortati’s Account of the Legal Order and the Material Constitution

by M. Brigaglia

In this article, taking my cue from the insightful analyses contained in the book The Legacy of Pluralism, by Mariano Croce and Marco Goldoni, I reconstruct in outline Costantino Mortati’s conceptions of the law as a legal order and of the material constitution. I focus on the problems pointed out by Croce and Goldoni: the emergence of legal normativity, the problem of radical pluralism, and the role of jurists vis-à-vis politics.  […]

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Institutionalism and Plurality of Legal Orders Between Legitimacy and Constitutional Axiology

by D. Martire

This paper addresses the issue of legal pluralism and the plurality of legal systems starting from the book ‘The legacy of pluralism. The continental jurisprudence of Santi Romano, Carl Schmitt and Costantino Mortati’. In particular, through the valuable leitmotif introduced by the Authors, consisting of the double relationship between ‘juristic and political conceptions of law’ and between ‘matter and nomic force’, […]

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The Obsession with Order

by S. Pietropaoli

The book by Mariano Croce and Marco Goldoni retraces in a punctual, detailed way, and consistent with the methodological and theoretical premises they directly expounded, the question of the dynamics amongst law and politics in three great figures of modern legal thought. Their focus is on the way Santi Romano, Carl Schmitt and Costantino Mortati address the difficult relationship between the centripetal attraction of a supreme political entity and the centrifugal plurality of social life.  []

 

ESSAYS

Dealing with the Dieselgate Scandal in the US and EU

by F. Bertelli

Courts decisions following the VW diesel emissions scandal, widely known as ‘dieselgate’, reveal a serious lack of European harmonization in the enforcement of Consumer Law thereby undermining consumer protection and uniformity across member states. This article presents an overview of the legal implications of the cheating emission scandal in the US and EU.  [...]

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‘Much Ado About Nothing?’ The New Policy on Early Medical Abortion (EMA) in Italy  

by E. Caruso

The paper comments on new rules on EMA introduced in August 2020 in Italy. It argues that, despite being an improvement in EMA policy in comparison to the previous situation, these new rules do little to address the significant enduring barriers to EMA in many areas of the country. […]

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Digital Data and Privacy Between Partners: A Critical Approach to a Technological Family Law Issue

by E. de Belvis

The author reflects upon the possibility to read the rules of the Italian Civil Code in a way which gives them new effectiveness in function of the specific requests for protection connected with the use of technologies. The main theme is represented by the right to privacy between spouses and the need of a balance between the aforementioned personal right and the matrimonial duties.[…]

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‘Offers They Can’t Refuse’: Assessing the Impact on Business and Society At-Large of the Recent Fortune of Anti-Discrimination Laws and Policies

by R. de Caria

The article considers the relationship and balance between freedom of economic initiative and obligations deriving from anti-discrimination laws. After providing a theoretical framework for the problem of the limits to contractual autonomy arising from the horizontal application of fundamental rights (Drittwirkung), the work focuses on its most recent developments, especially in relation to case law, from a comparative perspective.  []

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The Three Myths of Tort Law in the Chinese Civil Code

by H. Jiang

This article raises three doctrinal myths within Chinese tort law upon the enactment of Chinese Civil Code. These myths led to difficulties in understanding Chinese tort law. More specifically, it is unclear what is the exact scope of rights protected under tort law, if personality rights claim is an independent basis of claim and when and to what extent liability in equity, a special liability without fault, can be imposed.  […]

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Subsidiarity and the New Frontiers of Freedom of Contract

by F. Maisto

The principle of subsidiarity is a suitable basis for legitimating a ruling that contracts concluded in place of public acts are binding. In this way, freedom of contract extends to new forms, namely: ‘contracts substitutive of administrative measures’; ‘contracts as an alternative to judicial settlements’; and ‘contracts as sources of legal rules’.  […]

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The Bounded-Rationality Model in Italian Over-Indebtedness Regulation

by F. Nanci

In recent decades, the basic rational-actor model – which also influenced law – has been questioned by cognitive psychology studies, whose results are now finding support from technologies dedicated to neuroscience. Cognitive psychologists propose a different decision-making paradigm, asserting that economic choices are often conditioned by biases and heuristics, on the assumption that the ‘real man’ is boundedly rational.  […]

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Bitcoin: Civil Law Topics and Issues

by C. Pernice

The essay aims to examine some legal issues in the civil sphere related to a new digital asset, Bitcoin, also in light of the most recent italian case-law that has dealt with the matter in order to propose adequate regulatory proposals pending the comprehensive regulation of these innovative technological assets.[…]

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The Right to Know One’s Genetic Origins: A Right in Need of Regulation

by S. Praduroux

Leaving aside the evergreen ethical debate surrounding anonymous childbirth and donor insemination, this article analyses them adopting a fundamental rights approach. This approach brings out the growing importance accorded by Italian courts to the right to know one’s genetic origins, which calls into question the right to anonymity of the anonymous mother and the gamete donor.  []

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Recent Normative Developments in Women’s Political Representation in the Italian Regions

by M. Rosini

The paper aims to analyse the mechanisms of gender equality implemented by Italian regions in their electoral laws. If in recent years, at national and local level, the state legislation has introduced effective measures which have partially redressed the historical under-representation of women in the elected assemblies, at regional level the picture is very different.  []

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Antidiscrimination Law in the Italian Courts: New Frontiers on the Topic in the Age of Algorithms

by R. Santagata de Castro

In Italy, as in many other countries, the recent pandemic has enriched the debate regarding the problem of discrimination in the workplace. Social and economic restrictions introduced by the Government in order to slow the spread of Covid-19 have exacerbated existing inequalities, especially those relating to gender, and created new ones.  […]

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Unlawful Data Processing Prevention and Strict Liability Regime Under EU GDPR

by E. Tosi

This essay provides an in-depth analysis of the new special regulation on civil liability for unlawful processing of personal data and compensation for pecuniary and non-pecuniary damages – enacted pursuant to Art 82 of the General Data Protection Regulation (GDPR) – with respect to the protection of the fundamental personal rights to confidentiality and protection of personal data.  […]

 

CORPORATE AND FINANCIAL MARKETS LAW

Long-Lasting Companies and the Withdrawal Right in Italy

by P. Butturini

In Italian corporations and limited liability companies, the withdrawal right is provided by law when the entity has perpetual duration. Sometimes, case law and scholars hold that this right should exist also when the duration is very long, as happens in partnerships. However, in light of applicable rules and the general principles underlying them, this opinion is not valid.  [...]

 

MALEBOLGE

Commons and Patent Law at a Crossroad

by M. Francesca

The commons and the nature of the interests inspiring a – more or less organized – community of people provide the conceptual background to make sense of the concept of ‘appropriation’, in line with the principle of subsidiarity. The goal is to open up to a variety of interests that motivate the individual members of the multitude to participate,  [...]

 

SHORT SYMPOSIUM ‘Interlegality: Exploring its Scope and Rationale’

Inter-Legality: On Interconnections and ‘External’ Sources

by G. Palombella

The development of legal governance interweaves a number of layers of legalities mutually exclusive and reluctant to partake in a global overarching and harmonising architecture. An array of legal ‘software’, self contained legal regimes pierce the veil of State systems. This article explains, also through a number of judicial cases at the Italian, European and International Courts, [...]

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The Importance of Being A Case.
Collapsing of the Law upon the Case in Interlegal Situations

by A. di Martino

The article aims at delving into the concept of a concrete ‘case’ within the general framework of the theory of interlegality. The argumentation starts from the acknowledgment that it is not possible to identify in advance and in abstract terms the rule governing the case, and according to which it should be adjudicated: […]

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Administrative Inter-Legality. A Hypothesis

by E. Chiti

The article discusses the possible relevance of inter-legality in the process of implementation of public policies. It opens by observing that inter-legality emerges, both as a situation and as a prescriptive criterion, not only in the context of judicial disputes, where it finds a highly fertile ground, but also in the policy cycle.[…]

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From Conflictual to Coordinated Interlegality: The Green New Deals Within the Global Climate Change Regime

by G. Çapar

Climate change is one of the most wicked problems we have to deal with in the 21st century. No need to say, it is a problem of politics. The paper will first outline, taking a historical perspective, the institutional developments global climate change governance has been experiencing within the last two decades, with a particular focus on the contrast between Kyoto Protocol (KP) and Paris Agreement (PA) and their distinctive mode of governance. […]

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Inter-Legality and Surveillance Technologies

by S. Elif Biber

On 19 May 2020, the German Federal Constitutional Court ruled that telecommunication surveillance of non-German individuals outside German territory violates the German Constitution. The reasoning of the Court entails a number of crucial questions both from the international and European human rights law perspective. […]

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The ‘Two Suns’ of EU Digital Copyright Law: Reconciling Rightholders’ and Users’ Interests via Interlegality

by G. Priora

Copyright law is an emblematic example of the restless relationship between law and technology. The discipline fundamentally aims at striking a fair balance between the interests of copyright owners and users and, as the ongoing process of EU copyright reform demonstrates, digital technologies play a key role in pursuing this objective. […]