Law Commons^™

A Tiny Heart Beating: Student-Edited Legal Periodicals In Good Ol' Europe, Luigi Russi, Federico Longobardi

Bocconi Legal Papers

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 …

Driving Off The Face Of The Fourth Amendment: Weighing Caballes Under The Proposed 'Vehicular Frisk' Standard, Christopher M. Pardo

Bocconi Legal Papers

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 …

Hart's 'Postscript' And The Nature Of Legal Theory, Matteo Mattioni

Bocconi Legal Papers

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 Postscript 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 …

Company Management Conflict Resolution, Third-Party Intervention And Governance Models, Valerio Sangiovanni

Bocconi Legal Papers

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 …

Chronicles Of A Failure: From A Renegotiation Clause To Arbitration Of Transnational Contracts, Luigi Russi

Bocconi Legal Papers

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 …

The Regulation Of Covered Bonds Issued By Italian Banks, Valentina Miscia

Bocconi Legal Papers

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 …

Punish Or Deter? Theoretical Issues And Judicial Cases On Punitive Damages, Paola Pellini

Bocconi Legal Papers

This paper presents an overview of the two fundamental purposes of punitive damages (deterrence and punishment) and their balancing in courts’ decisions. According to the first rationale, punitive damages should in fact be imposed when deterrence would otherwise be inadequate because of the possibility that injurers might escape liability. In particular, punitive damages should be set at a level such as to confront potential injurers with the total social cost of their actions, something that is achieved when their damage payments will, on average, equal harm. For this purpose, an overview is presented of the “multiplier formula,” as introduced in …

Point And Click: E-Commerce Consumer Protection In Italy, Marco Bassini

Bocconi Legal Papers

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 …

Implicit Premises: Structure Of The Law And Extralegal Formant In Italy, Luigi Russi, Matteo Mattioni

Bocconi Legal Papers

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 …

Information Duties In Providing Investment Services To Retail Customers, Federico Longobardi

Bocconi Legal Papers

The present paper analyses, after discussing in general terms the value of information in financial markets, conduct rules under article 21(b) of Italian decree 58/1998 and articles 26, 28 and 29 of Italian financial intermediaries regulation (containing the so- called “know your customer rule”, “know your merchandise rule”, “suitability rule”). Where appropriate, it is discussed which measures ought to be adopted to comply with the contents of the Directive 2004/39/EC; moreover, due attention is paid to the rules regulating foreign markets and to the suggestions coming from economic analysis of law. The last part of the paper briefly describes the …

New Perspective On Market Abuse: Outsider Trading As An Outlawed Conduct, Jacopo Busnach Ravenna

Bocconi Legal Papers

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.

Note: downloadable document is …

Trust: Transcription And Opposability Of The 'Segregation', Federico Mottola Lucano

Bocconi Legal Papers

The main objective of the paper is to clarify, as far as possible, the issues raised in civil law countries - and Italy in particular - by the introduction of a common law legal category like that of “trust”. The work sets off from a new piece of legislation issued by the Italian government in 2006, regulating the “transcription of acts of destination for the fulfillment of interests worthy of legal protection, referred to people with disabilities, to public administrations and to other entities or physical persons”. In a simple and basic way, the Italian legislator tried to introduce by …