The paper contains an analysis of the efforts undertaken by the Italian legislator in the last few decades – spurred also by the enactment of European directives on the matter – to establish a progressively more precise, but ultimately stratified and precarious, regulatory framework with respect to a phenomenon in great expansion: electronic commerce, which offers a clear exemplification of the difficulties that characterize the complex relationship between law and technology.
Highlighting the immanent limits and problems with respect to the legislator’s choices, prominence has particularly been given to the difficulties arising from an obstinate application of general rules to a set of economic practices that would, instead, call for the enactment of subject-specific provisions, thereby requiring the establishment of an entire new branch of the law.
The foregoing analysis is further performed with a special focus on the paradigmatic case of consumer protection. Consumer protection rules in the context of e-commerce are in fact interlaced with both the general discipline of contracts, and the dedicated rules enacted purposefully with a view to e-commerce, thereby offering the clearest example of a regulatory framework “caught” between old and new and, as such, undermined by interpretive controversies.
 

This paper has a twofold aim: to analyze the possible opportunities disclosed by the observed growth of student-edited law reviews in Europe and to propose an innovative model of student participation to legal publication.
The first part explores the phenomenon of student-edited law reviews in the U.S., focusing on its recognized educational benefits. Among others, it is observed that  participation in student-edited law reviews might promote greater scholarly maturity among J.D. students, who might in turn be better equipped for a career in the academia after finishing law school, in comparison to their same-age European peers. Hence, there follows an examination of the possible beneficial repercussions that the establishment of student-edited law reviews may yield on the process of faculty education in (continental) Europe, in light of the general practice therein endorsed of academic “apprenticeship” under a mentor. Such benefits may consist, among others, in the enticement of larger numbers of potential academicians and in their possible greater intellectual maturity, providing new meaning to the aforementioned time-honored European practice.
The second part of the paper focuses, instead, on the drawbacks brought about by excessive proliferation of student-edited law reviews in the U.S., such as alleged decrease in the quality of published scholarship as a consequence of the superficial quality control that student editors sometimes perform. In view of the foregoing, an innovative model of student publication is proposed, in order to prevent the onset of such drawbacks in Europe, while retaining the above-outlined benefits of early student involvement in academic discourse. It is suggested to complement few, authoritative sources of published scholarship in the form of peer-reviewed journals with student-edited working paper series which, if based on the guideline to provide substantial constructive feedback to authors, could ultimately help foster a quality improvement of published scholarship.
 

The present paper recounts the various steps which parties to a transnational contract containing a renegotiation clause may need to go through, should the circumstances accounted for in the renegotiation clause come to existence. To this end, the article sets off from an outline of the most relevant structural features and functions of renegotiation clauses, and of the typical obligations which may derive therefrom.
Secondly, the paper’s focus narrows down to the – by no means infrequent – case of failure to renegotiate in presence of an arbitration clause governing the parties’ agreement. In the latter case, in particular, several possible solutions facing the arbitral tribunal are explored, even by making parallel reference to the powers of national judges in similar cases. Such discussion also tackles the problem of the possible recognition of an award containing an adaptation of the contract by the arbitral tribunal, pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Finally, possible criteria which the arbitral tribunal may resort to in the latter case are also explored. We conclude that it is not possible to give a clear-cut answer to the question of whether, given the insertion of a renegotiation clause in a long-term transnational contract, arbitration may then successfully make up for the parties’ lack of agreement. To this end, it is in fact required that the parties’ will, the applicable procedural law and the applicable substantive law all converge on enabling contract adaptation by arbitrators.  

The paper presents a detailed commentary on the regulation introduced in Italy by Art. 37 of Legislative Decree No. 5/2003, concerning the resolution of conflicts arising with respect to a company’s management. In particular, the work sets off by defining key terms, and later progresses by delving into every stage of the discussed regulation. In this context, the author first enumerates the types of companies falling within the purview of Art. 37- not without some criticism as to the exclusion of joint stock companies – and describes the related governance models with a view to their potential for generating conflict over management decisions.
After completing this background discussion, the author goes on to define the notion of “conflict” for the purpose of resorting to Art. 37 procedures, which he then describes in a step-by-step fashion. In particular, the most relevant passages discuss (1) the determination of the persons entitled to start Art. 37 conflict resolution procedures; (2) the possible appointment of a “designator” entrusted with the task of selecting the “dispute resolutor”; (3) the possibility to resort to appeals procedures before a further committee established by the company’s articles of incorporation; (4) the conflict resolutor’s and the (possible) appeals committee’s liability, incurred in the performance of their decision-making tasks; (4) the possibility to resort to the judiciary, upon unsatisfactory completion of the conflict resolution procedures.
 

This paper explores and explains the socioeconomic and racial effects of the U.S. Supreme Court’s Caballes decision. While society charges law enforcement with eliminating illegal drug activity, the Fourth Amendment rights of every American citizen must also be respected. In Caballes, the Supreme Court held that a dog-sniff does not constitute a Fourth Amendment search, so probable cause is not needed to examine a citizen’s vehicle using a drug dog. While Caballes may be effective in helping police battle a burgeoning drug trade, as it allows police to walk a drug-detection dog around any lawfully stopped vehicle, it also creates a situation ripe for the exploitation of underprivileged citizens. This article discusses how the Supreme Court could have created fair and just results. Some alternative holdings also would have been more logical and could have effectuated a better balance of personal and government interests. Thus, in the absence of even the merest other reasonable suspicion, a drug-detection dog’s alert should not be considered enough to merit probable cause. The benefit that jurists practicing in civil law jurisdictions may derive from reading this paper consists in the opportunities for comparative confrontation in the field of criminal law and procedure which it offers. Additionally, it is an example of several features which are distinctive of American constitutional reasoning, first and foremost the tension between federal governmental action and individual rights.

This paper analyses the nature of Herbert L. A. Hart’s legal theory – that is the meta-cognitive aspect of his analytical jurisprudence – with reference to his last, unfinished writing (the Post-script to his Concept of Law, posthumously published in 1994) and to the recent, doubtful reply coming from the Postscript’s main addressee, the American philosopher Ronald Dworkin. After a brief – but not cursory – summation of the essential features of Hart’s and Dworkin’s legal theories and an overview of the debate that continued between the two up to the late 1980s, the present work delves into the Postscript’s contents, by means of which Hart tried for the last time to settle his account with his intelligent disciple. At last, Dworkin’s newest side-taking on the point (Hart’s Postscript and the Character of Political Philosophy, published in 2004) is consid-ered, dwelling on the most controversial issues it presents.

The present work aims to provide an overview on the regulation of covered bonds which is in force in some European countries (Germany, France and Spain), and then to deeply analyze the recently-enacted Italian regulation. After a brief introduction on what covered bonds are, an insight into Law no.130, 30th April 1999 is given, also in comparison with securitization operations. A specific reading is provided with respect to regulation set by the Treasury Ministerial Decree no.310, 14th December 2006, and the Bank of Italy Instructions no.501981, 17th May 2007. The work focuses on authorized issuers and special purpose vehicles, on eligible assets and their segregation, as well as on liability allocation. The regulation is evaluated from a comparative point of view, and its economic impact is considered as well.

The paper has been removed, due to extensive modifications being performed by the authors to update the piece to more recent cases.

The paper – a revision of ILSU Working Paper No. 2008-01/IT - aims to schematically illustrate and clarify the logical categories according to which it is hypothesized that the extralegal formant – law practitioners - of a specific civil law jurisdiction – Italy - logically understand the unity and functioning of their legal system. According to the working hypothesis, the logical categories described in the paper should provide an illustration of the formal framework of reference which Italian jurists resort to, for the purpose of justifying their arguments about the law. Hence, the analysis carried out in the paper should help understand the "working rules" followed by law practitioners when working with the law. A practical application is further offered, in reference to the debate relating to the possibility of a finalistic definition of jurisdictional function. In this last respect, the present version of the paper contains a more detailed discussion of the different possible meanings of the term “function”.

The following paper illustrates how the Market Abuse Directive 2003/6/EC has backed up previous legislation by contemplating a new form of outlawed behaviour which an outsider may carry out by exploiting her informative advantage. After a general analysis of the features of such conduct, relevant for both criminal and administrative law, its main characteristics are underlined in a comparative perspective with US law. A schematic outline of the most critical analyses on outsider trading regulation is also carried out. The paper eventually deals with two controversial applications of the rules under Italian decree 58/1998, recently modified.