7 THE ITALIAN LAW JOURNAL NO. 1 (2021) HISTORY AND PROJECTS The Chinese Civil Code and ‘Fascination’ with Roman Law. A Conversation with Oliviero Diliberto by C. Crea and O. Diliberto The Civil Code of the People’s Republic of China came into force on 1 January 2021 following a long and complex gestation lasting decades and involving many failed attempts at different times in Chinese history. [...] ESSAYS Atheism and the Principle of Secularism in the Italian Constitutional Order by F. Alicino More diverse and more militant nonreligious groups are contributing to change the socio-cultural landscape of a growing number of constitutional democracies. Many of these groups and their various components (hard and soft atheists, agnostics, rationalists, humanists, secularists) are claiming to enjoy the protection of religious freedom, […] _____________________________ The Protection of Choreographies Under Copyright Law: A Comparative Analysis by A. Borroni and G. Carugno The legal literature on intellectual property has rarely focused on choreographies. Choreographic works are different from other works protected under copyright law, because they consist in a limited number of standardised building blocks (musical notes, dance steps and movements) which are then each time arranged in an original, creative, and reproducible combination. […] _____________________________ Advancing the Rule of Law: Creating an Independent and Competent Judiciary by L.A. Di Matteo, G. Mykhailiuk and N. Mykhailiuk An independent and competent judiciary is an essential element in rule of law systems. The rule of law continues to be tested, even in countries where the principle has been firmly entrenched as in the United States. The judicial reform movement in Ukraine offers a case study in the creation of such a system. […] _____________________________ Contract Automation from Telematic Agreements to Smart Contracts by A.M. Gambino and A. Stazi Technology creates new opportunities for socio-economic relations, commercial exchange and to overcome national borders, allowing to conclude and execute agreements more quickly regardless of the distance between the parties. However, technology also tests the contractual institution as it requires to adapt it to immediate, transnational, automatic uses, and to the legal issues that consequently arise. […] _____________________________ The Trust Experience in San Marino Between Ius Commune and International Models by D. Mantucci and L.E. Perriello San Marino trust law is embedded in a consolidated civil law tradition stretching back to the ius commune system of fiduciary instruments, thereby making it possible to trace, to a large extent, an itinerary related to common law trusts, and to challenge unwarranted allegations (now, fortunately, fading away) that trusts cannot be transplanted into civil law countries. […] _____________________________ Innovation Partnerships and Italy’s Participation in the European Space Economy Plan by L. Marraccini The present study intends to analyse the development process of the Space Economy, firstly at EU level, so as to subsequently examine the characteristics, especially the legal ones, that characterise the Italian Plan for the Space Economy, for the implementation of which the Innovation Partnership was used, in particular for the enactment of the Mirror GovSatCom Programme. […] _____________________________ by A. Nervi The essay moves from a description of the emission trading system, as regulated by international agreements and European directives, focusing on the measures contemplated therein. Starting from these premises, two aspects come to attention: […] ____________________________ Questioning Representative Sovereignty: by G. Vosa The Italian constitutional order is undergoing a slight but salient shift as regards the role of the Head of State, who is called on to take delicate political positions while acting as a liaison between the national and supranational stages. This work aims to investigate this shift and its consequences to analyse how a State’s constitutional structure evolves as confronted with the post-State reality […] _____________________________ Online Unfair Commercial Practices: by M. Zarro The supranational economic paradigm considers the weak user a tool for the realization of the market: through his choices (contracts) he rewards companies that contribute to offering products at the best quality-price ratio, thus playing a central and propulsive role in the European common market. […] HARD CASES Early Repayment of Loans Under EU Law: The Lexitor Judgment by E. Baffi and F. Parisi Recent changes in EU law provide flexibility and protection to consumers, facilitating early repayment of loans, when the consumer is no longer interested in continuing a credit relationship. From an economic point of view, early repayment of loans should be facilitated, because it allows money that is no longer needed to be put to other desirable uses. [...] _____________________________ by M. Falsone In 2020, an Italian tribunal classified a food-delivery rider working via a digital platform as an employee for the first time. Italian courts and scholars have struggled with new, ambiguous legal notions with the aim of (re)shaping the border between subordination and self-employment. […] _____________________________ Science at the Italian Bar: by P. Monaco Due to the increasing number of legal questions which cannot be answered without recourse to scientific knowledge, the issues surrounding the relation between science and the law have become a hot topic in legal debate. For this reason, it is not surprising that the tragedy of COVID-19 is raising many questions for lawyers to be debated in court. […] _____________________________ by B. Wołodkiewicz In European procedural law, the existence of jurisdiction implies that a case must be heard by a court, which may be in collision with the obligation to decline jurisdiction when the defendant relies on state immunity. In its recent judgment of 7 May 2020, C-641/18, the Court of Justice of the European Union ruled on the relationship between state immunity and the exercise of jurisdiction resulting from the Brussels I Regulation. […] MALEBOLGE by G. Zarra This article discusses the concept of imperative norms (either public policy or mandatory rules) in the context of international commercial arbitration. It demonstrates that, as of today, arbitrators are perfectly suited to apply domestic imperative norms and that they have to carry out the difficult task of applying – or at least taking into account – all the imperative norms that may affect the enforceability of the award. [...] CORPORATE AND FINANCIAL MARKETS LAW (In)efficient Cost Allocation in Italian Proxy Contests by G.N. Antichi The research aims to examine the regulatory model adopted in Italy relating to Proxy solicitation. It will be verified whether Proxy solicitation, as actually regulated, adapts to the high level of ownership concentration that characterizes the Italian stock exchange and therefore provides adequate solution for agency’s problems to which these ownership structures give rise. […] _____________________________ Shifting the SME Corporate Model Towards Sustainability: Suggestions from Italian Company Law by L. Marchegiani While Corporate Social Responsibility (CSR) is currently at the center of debates regarding company law all over the world, the discourse on this topic remains predominantly focused on large enterprises operating at a multinational level. The purpose of this paper is to introduce some reflections on the relationship between CSR and smaller companies. […] SHORT SYMPOSIUM: ‘THE TERRIBLE DUTY. LEGITIMACY AND USEFULNESS OF PUNISHMENT’ by M. De Caro and F. Toto _____________________________ The Therapeutic Function of Punishment in Aristotle by F. Farina In the Nicomachean Ethics Aristotle describes punishment as a sort of cure. However, a well-defined and complex theory of punishment is nowhere to be found in Aristotle’s works: all mentions of punishment occur in works significantly different in focus and the argumentative contexts also vary. […] _____________________________ Punishment Not War: Limits of a Paradigm by L. Foisneau The distinction between punishments and acts of hostility is central to Hobbes’s theory of punishment in his three political treatises, but also in the ‘Dialogue of the Common-Laws’ and ‘The Questions concerning Liberty, Necessity and Chance’. Such a distinction is not, as Agamben would have it, the expression of the equivalence between sovereignty and exception, […] _____________________________ ‘Public Enemy’? by F. Toto This article focuses on references to the issue of punishment disseminated in the Social Contract. Through the analysis and contextualization of these references, it aims primarily to frame Rousseau’s theory of punishment within the broader context of his political theory. […] _____________________________ How to Punish? by D. Ippolito The article faces the penal problem in the Enlightenment philosophy, proposing a three-step approach: 1) detection of the normative principles elaborated in the debate on the right to punish; 2) clarification of the theoretical foundation and the political scope of such principles; 3) examination of the relationship between these principles and different types of penalties. […] _____________________________ Kant on Punishment: Between Retribution, Deterrence and Human Dignity by F. Fantasia This article aims at offering an organic understanding of different elements of the Kantian philosophical-juridical conception of punishment. After analyzing Kant’s argument in favour of the legitimacy of the punishment, I will single out two distinct levels of analysis: on the one hand, that of the conditions of punishability in general, where the function of punishment as retribution is outlined; […] _____________________________ The Necessity for Punishment in Hegel as a Right of Freedom by S. Tortorella The article presents the theory of punishment in the Elements of Philosophy of Right focusing on Abstract Right and Administration of Justice. The first part of the essay underlines how punishment allows restoration of the universality of right and plays a role of education to the universal, directed against the natural and immediate will. […] _____________________________ Nietzsche, La Mettrie, and the Question of the Legitimacy of Punishment: A Hidden Source? by M. Piazza Friedrich Nietzsche (1844-1900), starting from the years of Human, All Too Human (Menschliches Allzumenschliches: 1876-1878) elaborates a conception of punishment based on an organic reflection on the origin of morality, the function of custom, the critique of remorse and the origin of justice, a reflection that then finds a definitive reworking at the time of On the Genealogy of Morality (Zur Genealogie der Moral: 1887). […] _____________________________ by P. Gonnella The prison model has won, as it has developed from the sixteenth-century workhouses to the ten million detainees currently imprisoned in the world. Despite these huge numbers, our penal and penitentiary legal framework is all about the myth of re-educational treatment. The treatment model is progressively overflowing, as was inevitable, towards a disciplinary model. […] 6 THE ITALIAN LAW JOURNAL NO. 2 (2020) ESSAYS An Anthropological Reading of Surrogacy and the Role of Supreme Courts by S. Aceto di Capriglia TFar from being confined within the narrow confines of law, the theme of surrogacy evokes delicate meta-legal questions arising from the evident axiological, moral, and religious implications. The patchwork of solutions adopted across the various legal systems provides legislators with food for thought, in the expectation of a regulatory intervention [...] _____________________________ New Forms of Guarantee: The Unifying Role of Legal Principles and General Clauses by M. Angelone As regards the atypical guarantees, interpreters have to derive the discipline applicable to the particular case from the legal principles, the general clauses and the ‘trans-typical’ or ‘meta-typical’ rules. The unity of the (typical or atypical) guarantees in the existing legal system must be ensured in an axiological standpoint (ie in the prism of the ‘constitutional legality’) without however degrading the complexity and the peculiarities of the factual context. […] _____________________________ by D.E. Bogdanov The rapid development of bioprinting technology creates serious challenges for the legal system, which is lagging behind scientific and technological progress in its development. Lawmakers and the judiciary will soon be forced to answer the questions posed by the new technological revolution. The main area of legal regulation is that bioprinting will have a serious impact on is tort liability, since the use of this technology will be associated with harm to the health of patients. […] _____________________________ Gender Equality in the Judiciary: Experiences and Perspectives from Italy by S. Cocchi and M. Guglielmi Today, women represent more than a half of the Italian judiciary. However, despite the increasing number of women judges and prosecutors holding managerial positions in courts and Public Prosecutors Offices a closer look at the gender distribution of top-level offices and to the composition of judicial self-governing bodies (the High Council for the Judiciary, HJC, in particular) shows that the so-called ‘glass ceiling’ is far from being broken. […] _____________________________ A Critical View on the Italian Ban of Surrogacy: Constitutional Limits and Altruistic Values by A.G. Grasso Despite the position of the Joint Divisions of the Italian Court of Cassation, which appears to hold that altruistic surrogacy is prohibited, a different – narrow – interpretation of the Italian ban on surrogacy is still possible. Altruistic surrogacy does not fall within the scope of the ban, according to the reasoning of the Italian constitutional judges in Judgment 9 April 2014 no 162, which declared it unconstitutional to forbid heterologous fertilization. […] _____________________________ Measuring (the Effects of) Measurements: Four Global Legal Indicators in Italy by M. Infantino Taking Italy as a case study, the paper aims to investigate the effects that global legal indicators – that is, quantitative collections of data purporting to compare and rank states’ performances with regard to an array of legal issues – might have on domestic legal systems. To this purpose, the paper examines the changes brought to the Italian legal framework by four selected indicators: […] HARD CASES by J. Morais Carvalho In the Airbnb Ireland case the Court of Justice of the European Union (CJEU) is again called upon to rule on the concept of information society service, applying the test defined in the Uber Spain and Uber France cases. The CJEU concludes that Airbnb has neither created a new market nor exercises a decisive influence on the hosts, conclusions with which we disagree. […] _____________________________ The Environment, Health, and Employment: Ilva’s Never-Ending Story by M. Meli The article describes briefly the history of the Ilva steel plant with particular attention to the facts occurred in the first decade of the new century and analyses deeper both the interventions of the Constitutional Court and the European Court of Human Rights, following the entrance in the market of the new globalized firm, Arcelor Mittal. […] _____________________________ Legal System and Sports System: Two in One? by A. Panichella This paper explores the relationship between sports justice and state justice. It focuses on the judgment of the Constitutional Court no 160 of 2019, which declared that Art 2 para 1, letter b) and para 2 of decreto legge 19 August 2003, no 220 on sports justice was not unlawful. Art 2 does not allow an appeal to the state judge for disputes concerning technical and disciplinary sports sanctions; the state judge can only decide on compensation for damages. […] _____________________________ Irreducible Life Sentences and Rehabilitation. by A. Santangelo The comparison between the recent Strasbourg Court case law and the Italian Constitutional Court judgments on irreducible life sentences pinpoints the emphasis on rehabilitation as prominent penological ground for incarceration, enhancing human dignity both at the national and supranational level. The judgment in Viola v Italy highlights that the domestic penitentiary regime suffers a structural problem which jeopardises the prisoners’ hope for future release. […] CORPORATE AND FINANCIAL MARKETS LAW by G. Gaudio In the aftermath of the 2007-2008 financial crisis, flawed variable pay structures of executives were blamed by many for contributing to the build-up of the global financial turmoil, as they allegedly incentivized them to engage in excessive risk-taking. Legislators around the globe decided to regulate remuneration structures of the fat cats in the financial industry with a view to better align their compensation with effective risk management practices. […] _____________________________ Contractual Principle of Intra Vires and Information as a Function of Proper Corporate Governance by D. Scarpa The principle of intra vires implies a certain conceptual relativism: it must be anchored to both the size and the specific activity of a corporate enterprise, which are the primary parameters for the evaluation and classification of companies. An adequate corporate structure is the result of business choices; intra vires should be regarded as a general clause in corporate organisation, […] _____________________________ The Spanish Reform of Director’s Duties and Liabilities by M. Troncoso Reigada Spain has introduced one of the most far-reaching European reforms in the area of directors’ liability over the last few years. This article analyses and assesses this reform, which affects directors’ duties as well as their liability, and which may serve as a model for amendments to the legislation in place in other countries, primarily in Europe and North and South America. […] SYMPOSIUM: PSPP (BVERFG, 5 MAY 2020) AND THE FUTURE OF THE EUROPEAN INTEGRATION by G. Scaccia and G. Vosa While introducing the participants to the Symposium, the Editorial aims to highlight the main consequences of the PSPP judgment as regards the future inter-institutional activity at the national and supranational levels and offers a key to ease the troublesome communication between the German Federal Constitutional Court and the Court of Justice. […] _____________________________ by F. Bignami The PSPP litigation involved the European Central Bank’s (ECB’s) Public Sector Purchase Programme for the purchase of government bonds on the secondary market with the aim, among others, of combating deflation. Although the Court of Justice of the EU (CJEU) found the PSPP lawful, the German Federal Constitutional Court (FCC) disagreed: On May 5, 2020, the FCC held that the CJEU’s judgment was not binding in Germany […] ____________________________ by A. Guazzarotti Drawing on the Weiss case of the BVerG, the article aims to criticize the irenic vision behind the construction of a ‘denationalized’ monetary policy entrusted to the ECB. In the absence of a European political union, and in the opposition of many to the creation of such a union, it was better to imagine an ECB devoted to pursuing the best possible monetary policy from a technical point of view (the vision from nowhere). […] _____________________________ The Wind of Change. On Some EU-Related Transformations of German and French Judicial Discourses by C. Amodio The ‘transformative power of Europe’ is a promising standpoint to shed light on national attitudes and beliefs formed in the course of centuries, as well as on paths taken by legal systems more recently. ------------------------------------------------------------------ 6 THE ITALIAN LAW JOURNAL NO. 1 (2020) ESSAYS The Same-Sex Parented Family Option: by G. Ballarani The essay offers a critical look at the recent Italian case law on same-sex parenting, investigating the relationship between the adult freedom of self-determination in the family sphere and the best interests of the child. After investigating the legal meaning of this formula as it is understood under the Italian legal system, [...] _____________________________ Italian Constitutionalism and Its Origins by S.G. Calabresi and M. Godi Focusing on the evolution of constitutional thought in Italy is key to understand not only Italy’s current legal order, but also constitutionalism more generally. In Italy, there has not been a true rupture point between the pre-unitary legal systems and the new constitutional order; a comprehensive study of Italian constitutional law, then, cannot do away with the preceding legal orders as modern textbooks do. […] _____________________________ Algorithmic Security: Issues and Policy Outlook by M. Gambini The subject of the paper is security in the field of intelligent robotics and algorithms. As there is currently no already existing legal framework, this paper takes as its point of departure an examination of regulatory solutions and application experience gained in the areas of information society services and automated processing of personal data, […] _____________________________ by A.M. Garofalo Over the last few decades, various attempts have been made to hermeneutically update the regulation of defects in consent (mistake, fraud, duress, incapacity), and above all of those defects in consent which we might call ‘informational’ (mistake and fraud). After having broadened the scope of mistake and fraud, Italian scholarship, followed by case law, […] _____________________________ by S. Landini This paper addresses the issue of automation coverage for costs in the event of damage caused by an automated decision-making process. It will consider civil liability and insurance from the point of view of problems related to the proof of a causal nexus between wrongdoing and losses. […] _____________________________ Punitive Damages Under the Lens of Constitutionality: The Role of the Hierarchy of Values by F. Maisto To award punitive damages in the absence of a specific statutory provision is incompatible with the provisions of Art 23 and Art 25, para 2, of the Italian Constitution. Nevertheless, the precept ‘according to the hierarchy of values of the legal system’ legitimates the use of this judicial technique to punish both torts and breaches of contract […] _____________________________ by G. Miribung Since modern agro-food producing systems strongly support climate change, I raise the question of whether this proved connection can be integrated into Italian private law. Frankly speaking, as agro-food producers contribute to climate change, why not make them responsible – that is, liable – for its consequences, that is to say, responsible for damage because of climate change? […] _____________________________ 5G Authorization Auctions in the European Union: by A. Pichetworakoon and N. Sukhawattanakun TThis article focuses on the role and significance of the 5G tendering system in contemporary comparative law, taking the cases of Italy and France as an illustration. While the first part of the article explains the concepts and purposes of 5G Technology in science and comparative methodology, the second part explores and examines the reasons behind Italy and France’s decisions […] _____________________________ The Effectiveness of the Law and Consistent Interpretation by G. Santorelli The subject of the value of judicial precedent appears to have assumed a central role in current scholarly debate. Although the principle of binding precedent is not applied in the Italian legal system, the gradual strengthening of the Court of Cassation’s function as guarantor of the uniform interpretation of the law raises important questions […] _____________________________ Transgenderism and Minor Age in Italy by A. Valongo In light of relevant rulings of the European Courts, this paper deals with the protection of the fundamental rights of individuals with gender dysphoria, with particular regard to the health and gender identity of the ‘older minor’, who only recently has drawn the attention of Italian case law. […] _____________________________ The Crisis of the Right to Informational Self-Determination by A. Vivarelli This paper focuses on changes in data protection regulation and especially on the risks concerning informational self-determination and privacy created by technologies. The analysis starts from the growing ability to control informational flows – the beating heart of the informational self-determination principal – and goes on to examine consent as a ‘tool’ for managing personal data. […] HARD CASES Big Red v Gabibbo. Fake Plagiarism, Fictional Characters and Derivative Work in Copyrights by G. Cassano and A. Davola Moving from the longlasting copyright controversy between the American Western Kentucky University and an Italian private television station, the article investigates the grounding elements for the protection of fictional characters, with a particular focus on the aspects qualyfing a ‘distinguishing personality’ according to Italian courts. […] _____________________________ by A. Cordiano Starting from a judgment by the Italian Supreme Court (Corte di Cassazione), the present work seeks to analyse the multifaceted and intricate system of assisted reproduction and new parenting models within the framework of Italian law; the Italian Civil Code is structurally unfit to regulate these contemporary phenomena. […] CORPORATE AND FINANCIAL MARKETS LAW by R. de Caria The article investigates some of the most relevant legal issues that emerge in connection with blockchain technology and smart contracts by addressing them from a public policy perspective. In particular, it focuses on some under-investigated problems connected to some possible legal hurdles to their widespread adoption in the legal practice of business at the national and international levels. […] ______________________________________________________ 5 THE ITALIAN LAW JOURNAL NO. 2 (2019) HISTORY AND PROJECTS Remembering Carlos Fernández Sessarego by J.A. Espinoza Espinoza _____________________________ by G. Sadun-Bordoni Rousseau’s theory of war codified the classical laws of war, as a relation between States, providing a paradigmatic vison of the anarchy of the international system. He was an early critic of theories such as domestic analogy, democratic peace, and the liberal faith in globalization. […] ESSAYS Personal Rights and Sport Injuries: by M. Cimmino The sports phenomenon is a form of manifestation of the human personality, necessary for the growth and maturation of human beings as individuals and as members of the social groups to which they belong. The practice of sport, as it happens for the great variety of so-called lawful dangerous activities, even if promoted […] _____________________________ by N. Coggiola The development of Italian civil liability rules since the 1865 Civil Code to the present day is clearly marked by the influence of foreign models. This article tries to detect these foreign influences, starting from those of the French Code Napoléon on the 1865 Civil Code, moving on to those of Pandectist legal thinking on the 1942 Civil Code, […] _____________________________ by P. D’Anselmi This Article investigates the impact of a possible neo-Weberian view of organizational behavior on formulations about the separation of powers. This neo-Weberian view of organizational behavior is called here the ‘administrative behavior hypothesis’ and it leverages one century of scholarship. The results of such an investigation are encouraging, […] _____________________________ The Enforceability of Smart Contracts by M. Durovic and F. Lech The development of new technologies has different effects on the existing law. Smart contracts are one of the forms of the new technologies that questions the application of the traditional contract law on commercial transactions using smart contracts. Italy was among the first jurisdictions to recognize full legal validity and enforceability of smart contracts. […] _____________________________ Archaeological Data Between Prerogatives of Protection and Requests of Access by A.M. Gambino and M.L. Bixio The purpose of this paper is to delineate some of the issues arising from the intersection of copyright and the protection of cultural goods, particularly in the framework of archaeology.When looking at the work of freelance archaeologists with regards to excavation activities, scientific filing and research, it is interesting to reflect on which, among the data produced, is to be considered ‘processed data’. […] _____________________________ by L. Lamberti This paper addresses the issue of the extent of judicial review over the sanctioning measures of the Competition Authority and its possible limitations following the introduction of private antitrust enforcement regulation. The matter is important since it helps to define the position, within the framework of the institutional scenario, of authorities that […] _____________________________ by F.G. Menga By deploying phenomenological categories mainly introduced by the German philosopher Bernhard Waldenfels, in this paper I seek to offer an analysis as to how contingency should be understood in order to adopt an adequate model for a democratic transgression of legal orders. To reach this interpretive goal, I articulate my argument along the following trajectory: […] _____________________________ The Italian Path to Reform: Italy’s Adversarial Model of Criminal Procedure by R. Orlandi This paper illustrates the tortuous path that many years ago (October 1989) led to the entry into force of a new Code of Criminal Procedure in Italy. The idea that this reform was inspired by adversary experiences gained in the Anglo-American legal systems is widespread. The opinion finds only partial confirmation in the events that have conditioned the preparation of the ‘first code of republican Italy’. […] _____________________________ Unfair Terms Control in Business-to-Business Contracts by F.P. Patti The aim of the paper is to outline the regulation of one-sided (or onerous) standard terms in business-to-business contracts according to Italian law, in the light of the specific legislative rules and existent case law. Differently than other European legal systems, Italian law does not provide for a substantive control of unfair standard terms in business-to-business contracts. […] _____________________________ Data as the Object of a Contract and Contract Epistemology by C. Perlingieri The syntagma ‘data’ enters in the legal language, following the recognition of the right of each person to the protection of personal data and only successively is used also in juridical discipline for the flow of information not referable to the natural person. The Regulations (EU) 2016/679 and 2018/1807 – that establish the free flow principle of different types of data and […] _____________________________ The ‘User-Centric’ and ‘Tailor-Made’ Approach of the GDPR Through the Principles It Lays down by F.G. Viterbo The European approach to online privacy and personal data concerns in the contemporary digital age appears to have embraced a ‘user-centric’ approach, inspired by values of ‘personalism’ and human dignity, regardless of the growing commercial value commonly given to personal data. […] _____________________________ Lights and Shadows of the Italian Law on Citizens’ Income by E. Vivaldi The article aims at analysing the recent Italian decreto legge 28 January 2019 no 4 (converted by legge 28 March 2019 no 26) on Citizens’ Income. After examining the new regulatory measure, the article deals with the role of the local authorities in the implementation of the measure, […] HARD CASES by F. Bartolini The European Court of Justice (ECJ) (Joined Cases C-54/17 and 55/17) was called upon to clarify whether marketing SIM cards with pre-activated functions, charged to the user if not deactivated, when the user is not informed in advance of the existence of those services, nor of their costs, falls within the definition of ‘inertia selling’ […] _____________________________ by M.W. Monterossi The lack of explainability of algorithms’ decision-making processes raises numerous issues, both when used by the public administration and private subjects. The Council of state has intervened in this matter, by establishing some principles to be followed when using automated IT systems in executing administrative activity. […] CORPORATE AND FINANCIAL MARKETS LAW by V. Villanueva Collao and V. Winship Smart contracts promise a world without intermediaries. However, that promise has quickly proved elusive, including in the context of Initial Coin Offerings (ICOs), a vehicle for funding startups built on smart contracts and blockchain. Particularly as ICOs attract retail investors who are not code-literate, the question arises: […] COMMENTS ON NEW ITALIAN LEGISLATION The New Italian Class Action: Hope Springs Eternal by A.D. De Santis This paper analyzes class action for damages and collective action for injunctive and declaratory relief as new collective proceedings introduced in the Code of Civil Procedure. It examines the main questions brought about by the new class action, regulated by a form of simplified proceedings. It is also considered the adhesion proceedings, which […] _____________________________ 5 THE ITALIAN LAW JOURNAL NO. 1 (2019) ESSAYS Self-Determination as an Expression of Collective Human Dignity: The Case of Catalonia by A. Abat i Ninet This paper has two distinct sections; the first one is devoted to an epistemological reconceptualization of the principle of self-determination. This principle needs to be updated to take account of the realities of the Twenty-First Century (globalization, new political structures, IT era, post-modern concept of sovereignty) […] _____________________________ Compensation for Torts of Necessity: The Law and Economics View by E. Baffi This paper seeks to propose a new interpretation of the rules that envisage compensation, be it damages or an indemnity, when a person takes an action in a case of necessity. The person acting out of necessity will also take into account the sum of money that he will be required to pay if […] _____________________________ Turning Gumbo into Coq Au Vin: by M. Boles In July of 2016, a project to translate the current Louisiana Civil Code that was enacted in 1870 from English to French was completed, marking the first time that the Code was completely translated. The monolingual version of the 1870 Code differed from the 1825 Code and the 1808 Digest in that both of those were written into French […] _____________________________ The Veil at School in Italy and in France by E. Codini This article focuses on the freedom for female students from the Islamic tradition to attend public schools wearing a veil in Italy and in France. Moreover, it addresses the various aspects in which the presence of religious signs and symbols can be manifested at school, including in particular the possibility for teachers to wear a veil […] _____________________________ Thirty Years of CISG: International Sales, ‘Italian Style’ by E. Ferrante The ordering of international contracts has a natural inclination to break free from national systems and create a sort of lingua franca for trade law. This has not prevented international sales, ie the typical model of cross-borders transactions, from finding their main source in the ‘United Nations Convention on Contracts for the International Sale of Goods’ (CISG): […] _____________________________ by E. Giorgini The paper moves from the idea that thanks to a technology, which was able to transmit data in a rapid and secure way, and the spread of (personal) computers, a globalised network of data users was created. They started to produce content which was then organized and interconnected. […] _____________________________ The Loss of a Right Within the System of Private Punitive Remedies by F. Longobucco Moving from the intent to govern general clauses more rigorously than in the past, the following research assumes that the loss of a right may result, stricto iure, from the application of a civil penalty, provided for by the legislator or conventionally determined. Thus, it does not seem that the use of the objective good faith, as in the German theory of Verwirkung, may lead the interpreter to rule the loss of the right irreparably, […] _____________________________ Invalidity of Contracts and the Protection of Third Parties’ Acquisitions of Land by M. Rizzuti, E. Kanışlı and L. Rademacher TPurchasers of land have a strong interest in becoming the fully vested owners of the land they intend to acquire. One of the risks a buyer potentially is exposed to stems from the legal relationship between the seller and the person from whom the seller previously bought the land. In this article, we examine the protection of purchasers in such scenarios in three jurisdictions: […] _____________________________ Low-Income Workers’ Financial Participation in Italy: A Proposal de iure condendo by S. Sonnati Following the acknowledgment of empirical evidence supporting the implementation of financial participation among all classes of workers, the Author assesses the Italian context and concludes that such systems have been poorly implemented, especially among low-income workers. […] _____________________________ The Rental Contract. Bike Sharing and Car Sharing as Sustainable Forms of Mobility by M.F. Tommasini IStarting with the concept of rental, this work aims to analyse alternative and more sustainable forms of mobility such as bike sharing and car sharing, and to discuss their legal regulation. Car sharing and bicycle sharing are services aimed at reducing the number of circulating cars in order to minimise the impact on the environment and human life. […] _____________________________ Presidentialism and Parliamentary System in Latin America. Considerations on a Balance to Be Defined by M. Zinzi The balance among the different types of presidential systems in Latin American countries is an issue of current interest. These Latin American experiences do not respond to the same logic that influences the different forms of government in other systems. The political, economic and social conditions of these countries are still decisive in the search for the separation of constitutional powers, […] CORPORATE AND FINANCIAL MARKETS LAW by C. Carletti The protection of women’s rights and the promotion of the principles of non-discrimination, equality and equal opportunities is one of the most sensitive issues in the public global debate. Long-standing discussions regarding women’s empowerment in the public and private domains have stimulated both institutional and business actors […] _____________________________ Information in the Context of Financial Markets and of Private Placements in Particular by C.E. Pupo There is no doubt about the decisive role that information plays in the market system. Markets need a constant flow of information, and that’s why jurists have wondered whether the State should intervene or not in order to satisfy this need. The debate on mandatory disclosure has actually been one most controversial in the field of financial markets, […] SHORT SYMPOSIUM: ALTERNATIVE RESOLUTION OF CONSUMER DISPUTES. AN ITALIAN OVERVIEW Alternative Dispute Resolution Regulation: A Work of Modern Art? by A. Fachechi Scholars and judges are confronted with the potential interferences between mediation in civil and commercial matters and alternative dispute resolution for consumer disputes, in view of the possible implementation models in the individual Member States. The modern work of the related regulations, the apparent contradictions and the overlapping of the scopes worry the interpreter in need of certainties. […] _____________________________ The Adoption of the Directive on Alternative Dispute Resolution for Consumer Disputes in Italian Law by E. Indraccolo The essay analyses some of the legal problems associated with implementing Directive 2013/11/EU on the alternative dispute resolution of consumer disputes in the Italian legal system. The author explains important jurisprudential cases and focuses on two judgments of the Italian Constitutional Court and the Court of Justice. […] _____________________________ by N. Scannicchio This paper considers the ADR Directive 2013/11 within the recent EU framework which entrusts enforcement of individual rights to regulatory powers of standardization and certification, administered by public and private bodies, under the supervision of European Authorities. […] HARD CASES by M. Winkler and K. Trilha Schappo This article comments on the judgment no 12193 rendered by the Sezioni Unite of the Corte di Cassazione on 8 May 2019, where the recognition and registration, in Italy, of a foreign parental order inscribing the nonbiological parent as the children’s legal father were denied on the ground that they violated the prohibition of surrogacy under Italian law, which was considered to be of public policy. […] ------------------------------------------- 4 THE ITALIAN LAW JOURNAL NO. 2 (2018) ESSAYS by E. Caterini The legal system shifts its parameters. Democracy is not only a decision-making instrument, it is also a value. The mandatory commitment of social relations imposed the need for all of us to ensure ‘the minimum subsistence’, with no avoidance for any of us to fulfil the duty of solidarity. Sustainability has become the social analysis of law. […] _____________________________ Let’s Disagree to Disagree. Relevance as the Rule of Inter-Order Recognition by F. Fontanelli Santi Romano’s intuitions on legal pluralism ring truer now than ever. This article explains the notion of inter-order relevance and repositions it in the current scenario of global legal disorder. Drawing from a series of recent episodes of high stakes clashes between legal orders, the article demonstrates that, ultimately, there is no normative robustness to pluralism. […] _____________________________ All You Need Is Control. by F. Mezzanotte The aim of this paper is to shed some new light on the classic topic concerning the constitutive elements of possession. The cultural diatribe originated with the juxtaposed views of Savigny and Jhering does not seem to have resulted, at least in Italy, in settled positions in the current academic landscape, with subjectivist and objectivist scholars […] _____________________________ The Allegation and Proof of Foreign Law in Spain After the New International Legal Cooperation Act by A. Ortega Gimenez The purpose of this paper is to explain the ‘new’ regime of allegation and proof of foreign law in the Spanish courts following the International Legal Cooperation in Civil Matters Act. As foreign law has historically been considered by our case law as a ‘procedural fact’, the International Legal Cooperation Act comes to enshrine this system in Art 33. […] _____________________________ Reasonableness and Balancing in Recent Interpretation by the Italian Constitutional Court by G. Perlingieri The constitutional case-law of the last few years confirms the unbreakable bond between interpretation and balance, and the impossibility, for the purposes of application, of interpreting without balancing and balancing without interpreting. The paper criticizes both those who advocate for an abstract distinction between the ‘legislative’ balance and the ‘judicial’ balance, […] _____________________________ Responsible Credit in European Law by U. Reifner Responsible Credit has been the lesson G20 drew from the world financial crisis in 2008. The crisis had indeed started with subprime credit in the USA. Its toxic contents contaminated all other financial products which are all based on a credit relation. This principle has conquered not only bank supervision but also contract law and seems to be able to prevent exploitation of States by private enterprises. […] _____________________________ ‘Ties that Bind’: Maintenance Order After Divorce in Italy by G. Terlizzi This article aims to describe the changes and uncertainties among judges and interpreters concerning the rules on after-divorce maintenance from when they were first introduced up to the most recent judgement by Italian Court of Cassation Joint Divisions. Since the first statute on divorce, back in 1970, maintenance has been the object of heated debate due to the difficulty of balancing two opposing needs: […] _____________________________ Old and New Trends in School Liability by E. Tuccari The paper investigates the double ‘contractual relationship’ (due to the enrollment of minors in school and to the ‘social contact’ between teachers and pupils), reflecting on the liability of the educational institutes in cases of damage inflicted by pupils on themselves and damage caused to a pupil by a third party. […] HARD CASES by G. Ciliberto In the aftermath of the migration crisis, the European Union and its member states adopted a series of policies aimed at reducing migratory pressure. A sample of these measures is the Italy-Libya Memorandum of Understanding of 2 February 2017. Under this commitment, Libya agreed to perform interception and return of boat migrants on high seas, an operation known as pull-back or push-back by proxy. […] _____________________________ Do Adopted Children Have a Right to Know Their Biological Siblings? by A. Cocco The Court of Cassation, with decision no 6963 of 20 March 2018, ruled on the adoptee’s right to know his/her origin. The Court ruled that when the adoptee asks for information about his/her biological history, he/she has the right to know not only the identity of the parents, but also that of any adult biological sibling. The latter must be consulted and asked to consent to the disclosure of their identity to the petitioner. […] MALEBOLGE Reform of Non-Profit Organisations in Italy: by M. D'Ambrosio Non-profit organisations in Italy have been reorganised through the Third Sector Code and additional legislation. However, the reform does not seem to be able to produce any of its desired effects. Even if it is too soon to come to any definitive conclusions on the reform, since the implementation procedure has not yet been completed, it is possible to draw some conclusions about the legislator’s approach. […] CORPORATE AND FINANCIAL MARKETS LAW by M.M. Cossu State shareholding in Italy has features which are linked both to the quantitative significance of the phenomenon and to the fact that special powers of appointment and removal of directors and members of the board of statutory auditors may be entrusted to the state as well as other public entities, such as municipalities, by means of the articles of association. These special powers have no equal in other legal systems. […] _____________________________ by G. Santoni The VIE (Variable Interest Entity) model allows offshore companies that control Chinese companies operating in restricted business areas, such as Internet operations, to be listed abroad. In fact, the Chinese legislator has excluded foreign investors from certain companies. Unlike legal systems, the criterion to determine the existence of foreign investments is the acquisition of shares. […] _____________________________ The Evolving Role of the Board: Board Nomination and the Management of Dissenting Opinions by M. Stella Richter jr and F. Ferdinandi In recent years, significant steps ahead have been taken in Italy to enhance corporate governance standards. The traditional commonplace, describing the Italian system as hostile to investors’ activism, is no longer accurate. This paper aims at (re)starting a discussion about the issues of board nomination and the management of dissenting opinions, […] SHORT SYMPOSIUM: SOME FOOD FOR THOUGHT AFTER MASTERPIECE CAKESHOP A Foolish Inconsistency: Religiously and Ideologically Expressive Conduct by M.R. Dimino TIn Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, Masterpiece’s owner, Jack Phillips, argued that forcing him to bake a wedding cake for a same-sex wedding would violate both his right to free speech and his right to the free exercise of religion, both of which are protected by the First Amendment to the US Constitution. […] _____________________________ Discrimination Based on Sexual Orientation and Religious Freedom in European Contract Law by L.E. Perriello Santi Romano’s intuitions on legal pluralism ring truer now than ever. This article explains the notion of inter-order relevance and repositions it in the current scenario of global legal disorder. Drawing from a series of recent episodes of high stakes clashes between legal orders, the article demonstrates that, ultimately, there is no normative robustness to pluralism. […] -------------------------------------------------- 4 THE ITALIAN LAW JOURNAL NO. 1 (2018) HISTORY AND PROJECTS Italy in Egypt and Historical Influences on Egyptian Codification by G.M. Piccinelli The presence of a large community of Italians in Egypt has assumed a meaningful dimension from the mid-XIX to the mid-XX century. Even if its economic and social profile was generally modest, it succeeded in creating schools, places of worship and meeting attended also by the Egyptian élites and by the members of other nationalities. [...] ESSAYS Italian Constitutional Court, Kelsen’s Pure Theory and Solving ‘Hard’ Cases by Z. Akhtar The legal system is a kernel of rules in which the crucial role is that of the law making body. The most important factor in the promulgation of laws is the ability to challenge any unfair or unjust law by invoking the powers of judicial review. In Italy, which practices a Civil law jurisdiction there is a constitutional court that conducts the judicial review of laws that concern the citizens. […] _____________________________ General Remarks on Civil Liability in the European Context by G. Alpa This article considers the evolution of the civil liability system in Europe from the perspective of the establishment and application of rules deriving from regulations and directives that define special types of torts. Neither the EU rules nor the principles developed by the Court of Justice always identify all the necessary components of the tortious act. […] _____________________________ Unfair Contract Terms Before the Italian Competition Authority (ICA) by M. Angelone The newly-introduced Art 37-bis of the Consumer Code provided the Italian Competition Authority (ICA) with new powers aimed at scrutinizing – ex ante or ex post – the unfairness of the terms included in standard contracts between traders and consumers. This paper analyses the legislative provision (as supplemented by secondary regulation) in view of the decisions adopted by the ICA […] _____________________________ The Prohibition of Discrimination as a Limit on Contractual Autonomy by G. Carapezza Figlia The essay analyzes the progressive assertion of non-discrimination as a principle within Italian and European contract law. After having examinated the legislative concept of contractual discrimination, the scope of the prohibition and the extent of its impact, the Author shows that the direct applicability of the principle of equality within private law relations is inseparable from the issue of the review of contractual autonomy […] _____________________________ by F. Delfini Liability insurance contacts can be divided into two main categories: loss occurrence based and claims-made based. While the Italian Civil Code (ICC) only considers and determines insurance contracts on a loss occurrence basis, since the end of the 20th century, the claims-made model has taken control of the market. This reception has posed various issues in the domestic legal system on which the Italian Supreme Court has recently ruled several times. […] _____________________________ The Italian Marriage: Crisis or Tradition? by R. Fadda Numerous reforms of Italian family law have been enacted in recent years regarding marriage, which reinforce the freedom of the spouses and which have provoked a crisis of the institution itself. The tendency emerging from the new laws reveals an accentuation of the married couple’s autonomy and of the public authority’s limited role in the different phases of marriage. […] _____________________________ The Recoverability of the Loss of the Right to Life per se: A Brief European Overview by P. Sanna Traditionally, with a few exceptions, in Europe, decisions of the courts have denied the recoverability of the loss of the right to life per se (and the subsequent transfer of the claim from the primary victim to his/her heirs). […] _____________________________ Will Formalities in the Digital Age: Some Comparative Remarks by I. Sasso The work proposes to examine current testamentary will formalities in light of the digital revolution that has swept through modern society these past decades. The analysis will concentrate on the extent to which each of the three forms of ordinary testamentary will governed by Italian law is compatible with new electronic and digital technologies. […] _____________________________ by C. Skach Contemporary world events, characterized by violence and extremism, force us to revisit the potential uses and abuses of political apathy in democracy. This article unravels the concept of apathy, placing it within its semantic field, qualifying it with respect to different political contexts, and making it relative to its possible conceptual opposites.[…] _____________________________ The GDPR and the LIBE Study on the Use of Hacking Tools by Law Enforcement Agencies by G. Ziccardi Digital information is, today, at the center of the cultural, social, technological and political discussions, above all with reference to its protection. In the age of big data, automated processing of information, large-scale use of algorithms and profiling systems, the risk of losing control over data and the fear of activities carried out in violation of the rights of the individuals, are very real. […] HARD CASES Res Iudicata in Breach of the ECHR: by C. Petta In the judgment no 123 of 2017 the Italian Constitutional Court declared inadmissible the question of constitutionality stemming from a Code of Administrative Procedure provision (Art 106) in the part in which it does not provide for the possibility to review a ruling in cases of conflict between domestic judgments and judgments of the Court of Strasbourg.[…] _____________________________ The Duty to Inform and Voidable Investment Orders by M. Semeraro The definition of the relationship between framework contracts and individual investment orders has always been the subject of debate both in legal scholarship and in case law, as it is functional to the solution of various application issues. […] _____________________________ ‘A Case with Peculiarities’: Mixed Same-Sex Marriages Before the Supreme Court by M.M. Winkler This article examines the judgment of the Italian Supreme Court (Corte di Cassazione) no 11696 of 14 May 2018 concerning the legal status of mixed same-sex married couples under Italian law. It explores the problems relating to the recognition and the civil status registration in Italy of couples of the same sex where one spouse is a foreigner and the other is Italian. […] ITALIAN CONSTITUTIONAL COURT'S SELECTED JUDGMENTS OF 2017 ********************************************** 3 THE ITALIAN LAW JOURNAL NO. 2 (2017) HISTORY AND PROJECTS Carlo Cattaneo and Gaetano Salvemini: The Modernity of their Federalism by E. Arban Federalism and federal solutions in Italy have never enjoyed much popularity, although they have been discussed at different times as viable solutions for a country fragmented along socio-economic and linguistic lines. This mistrust can be partially explained by the fact that federalism has been often misunderstood and construed as synonymous with division and disintegration of the territory. [...] _____________________________ by A. Di Falco This work focuses on the Neapolitan Jus Regni and judicial activities of the baronial courts in the Kingdom of Napoli during the early modern period; and in particular, the thorny activity of applying the law in the provincial territories in which individual cases could be subject to different procedural methods deriving from the statutory legislation in effect in each. […] ESSAYS The Constitutional Impact of the Exceptio Inadimpleti Contractus by A.M. Benedetti This article deals with the proposition that the exception of non-performance – suspending the execution of a given performance – engages the enjoyment of constitutionally-protected rights. Using inspiration from interesting Colombian jurisprudence, the author believes that, in such cases, the control over the use of the exceptio inadimpleti contractus can no longer be entrusted […] _____________________________ Unioni Civili: Same-Sex Partnerships Law in Italy by N. Cipriani This essay analyzes the main aspects of legge 20 May 2016 no 76, which allowed same-sex partnership in Italy. In particular, it seeks to reflect upon the elements that most differentiate the regulation of same-sex partnerships from that of marriages, in order to better understand whether these differences are entirely justified and reasonable. […] _____________________________ Constitutional Axiology and Party Autonomy by F. Criscuolo The Italian Constitution is based on strong values of personalism and solidarity. As a matter of fact, autonomy, freedom and right of self-determination are not absolute values, but values among other values. The Contract, as source of rules governing economic relations, should be subjected to a test of worthiness (meritevolezza) according to the constitutional values […] _____________________________ Financial and Energy Contracts: New Demands for the Regulation and Categorization of Contracts by C. Ferrari According to recent European regulations, certain kinds of contracts, mostly derivatives with an underlying energy product, risk being included, by virtue of the predominance afforded to the financial aspects, within the realm of financial contracts and consequently subject to the full extent of the legislation governing the latter. […] _____________________________ The Civil Wrong Between Private Relationships and Social Order by A. Lasso A new approach to the functions of liability allows the observation of civil wrong from two different perspectives: the relationship between the wrongdoer and the injured party and the system of values in its natural aspiration to stability. The unjust harm caused by the wrongdoer may entail the reinstatement of the victim’s property and the concomitant protection of important social interests. […] _____________________________ by V.L. Raposo This article presents a brief overview of how medical liability for wrongful birth and wrongful life issues is addressed under continental civil law in Portugal. It analyses the requisites for tort liability (wrongfulness, culpability, causation and damage), then explores how these elements operate in wrongful birth and life lawsuits. […] _____________________________ Godzilla and the Japanese Constitution: A Comparison Between Italy and Japan by J. Tsuji The Japanese movie ‘Godzilla’ illuminated controversial issues related to the existence of the Self Defense Force (SDF) under the current Japanese Constitution. In this movie, the Japanese Government sent the SDF, emergency power, and leadership of the prime minister to fight against an external enemy, Godzilla. […] CORPORATE LAW SECTION Corporate and Financial Markets Law: A New Section by M. Ventoruzzo _____________________________ The Expanding Boundaries of MiFID’s Duty to Act in the Client’s Best Interest: The Italian Case by L. Enriques and M. Gargantini MiFID requires investment firms to act in accordance with the best interests of their clients. This overarching principle shapes firms’ professional conduct in at least two ways. First, it sets a general standard firms have to comply with when dealing with their clients and its breach may lead to civil remedies for clients or administrative sanctions for investment firms. […] _____________________________ Principals vs Principals: The Twilight of the ‘Agency Theory’ by F. Denozza and A. Stabilini In this article, we maintain that the agency theory of the corporation, that has dominated the corporate law debate for the last four decades, offers a trivial and reductive description of the problems of the corporation, ignores the most significant phenomena and offers a distorted picture of issues that the law must solve. […] _____________________________ by M. Allena and F. Goisis This article aims to analyze the model of company emerging from the new Italian consolidated law on public entities owned companies of 2016, coming to the conclusion that, especially given the principles of the legislative delegation and the European Union law requirements, such companies are characterized as fully for profit and private. […] _____________________________ by F. Pernazza The Italian Law on Bankruptcy of 1942 has been amended and integrated several times on specific subjects, but until now, the total reform proposal has failed. Finally, in October 2017, a statute has been approved that establishes new principles on the entrepreneurial crisis and insolvency and delegates powers to the the Government to enable it to elaborate an organic reform of rules and procedures. […] HARD CASES Suicide: Not in the Wrong Moment, Please! by C. Baldus and P.-C. Müller-Graff The authors welcome the landmark decision of the Corte Costituzionale as the right step in the right moment. With a special accent on EU Law and Roman Law, they point out Italy’s role in European Legal Science. The EU law paradigm of linguistic equality fits perfectly to Europe’s long-term common interest, before and after Brexit. […] _____________________________ The Grand Chamber’s Stand on the Punitive Damages Dilemma by L. Coppo It is a truth universally acknowledged that corrective justice is the pillar on which the whole system of remedies rests in principle and modern tort liability revolves around the idea of compensation. Deeply anchored to that conception, Italian case law has been impervious to punitive damages, on the grounds of their alleged inconsistency with public policy, until its latest developments. […] SHORT SYMPOSIUM ON THE RIGHT TO BE FORGOTTEN: AN ITALIAN OVERVIEW Privacy in Europe after Regulation (EU) No. 2016/679: What Will Remain of the Right to be Forgotten? by F. Di Ciommo Regulation (EU) no 2016/679 (hereinafter ‘GDPR’), which will become applicable throughout the EU from next May and will replace Directive 95/46/EC, contains the first legislative embodiment of the right to be forgotten. In other words, the personal right that, thanks also to the well known Google Spain case, has captured the attention of operators and academics alike. […] _____________________________ by O. Pollicino and G. De Gregorio The European Court of Justice, in a decision dated 9 March 2017, dealt with the right of individuals to request of the authority responsible for maintaining the companies register the elimination (‘right to be forgotten’) of personal data concerning them entered in that register. […] BOOK REVIEWS Review of a monograph: Das Grundbuch im Europa des XXI. Jahrhunderts edited by Arkadiusz Wudarski by J. Gołaczyński _________________________________________________________________________________________ 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. [...] _____________________________ 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. […] _____________________________ 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 […] _____________________________ 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. […] _____________________________ 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 […] _____________________________ 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. […] _____________________________ 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. […] _____________________________ 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. […] _____________________________ 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. […] _____________________________ 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, […] _____________________________ 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 by P. Grossi _____________________________ Methods and Purposes of the Constitutional Court Watch by P. Passaglia _____________________________ ITALIAN CONSTITUTIONAL COURT’S SELECTED JUDGMENTS OF 2016 __________________________________________________________________________________________ 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. [...] _____________________________ 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 […] _____________________________ The Italian Class Action: 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 […] _____________________________ 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 […] _____________________________ 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). […] _____________________________ 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 […] _____________________________ 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 […] _____________________________ 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 […] _____________________________ 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 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. […] _____________________________ 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 by P. Femia _____________________________ 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 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 […] _____________________________ 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 ___________________________________________________________________________________________ 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 [...] _____________________________ 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, […] _____________________________ 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 […] _____________________________ 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, […] _____________________________ Instances of Civil Law in North American Common Law Tradition: 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. […] _____________________________ 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 […] _____________________________ Directive 2014/104/EU on Antitrust Damages Actions. 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 […] _____________________________ 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. […] _____________________________ 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, […] ---------------------------------------- 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 [...] _____________________________ 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 […] _____________________________ 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 […] _____________________________ 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 […] _____________________________ 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 […] _____________________________ 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 […] ---------------------------------- 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! [...] __________________ 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 [...] __________________ 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 [...] __________________ 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 [...] __________________ 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 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 [...]
The Italian Head of State in ‘Post-State’ Constitutional Law
A European Overview
The Case of Hydroxychloroquine
Difficulties in Rousseau’s Theory of Punishment
The Deontology of Punishment in the Enlightenment Philosophy
A Point of Juncture Between Strasbourg and Rome
The paper seeks to unravel some – more or less cryptic – legal changes driven by the EU integration process in both the German and the French judicial discourse. […]
The View from Italian Case Law
A Comparison Between Italy and France
The Civil Liability Between Risk and Negligence
Translating the Louisiana Civil Code
Italian Perspectives on Acquisitive Prescription of Immovables
Strengths and Weaknesses
The Italian Constitutional Court’s Point of View
New Paradigm or ‘Much Ado about Nothing’?
Cause and Consideration in Quebec and Louisiana Civil Codes
Some Considerations from the Perspective of Italian Law
