Roma Tre Law Review – 02/2022

‘Res Corporales’ and ‘Res Incorporales’. Roman Foundation and Current Development of a Bipartition

The article aims to critically reconstruct the dichotomy res corporales-res incorporales from Gai 2.12-14. In particular, attention is focused on the historical origin of the distinction and the discretional criterion underlying it, on the comparison between this distinction and the further distinction relative to res mancipi-res nec mancipi, and, finally, on the developments that the conceptual pair finds in the main modern codifications.

DOI: 10.13134/2704-9043/2-2022/1

The Italian Way Toward E-voting

Electronic voting is undoubtedly a challenge for contemporary democracies. Over the last few years, Italy has adopted a faltering approach to e-voting by fostering various and disjointed local experiments without any national strategy. Recently the Italian legislator has renewed its interest in the issue by setting up a “Fund for electronic voting” in the Ministry of the Interior Budget. The fund is aimed at encouraging e-voting experimentation addressed only to Italians residing abroad and voters who live in a different city from where they are resident. In fact, under Italian election law, the latter category of voters has to go back home to validly cast the vote. To regulate the experiments, the Ministry of the Interior adopted a decree based on the work of a commission of experts. In parallel, the Ministry of Foreign Affairs undertook its e-voting experiment for the election of the consultative body of the Committees of Italians abroad (Com.It.Es.). Starting from the above- mentioned cases, the paper aims to briefly point out some domestic constitutional issues connected to e-voting. Then, it will focus on using e-voting as a way to fill the loopholes in Italian election law according to which those voters who live far from the place of their residence are forced to go back home to validly exercise the fundamental right to vote. This factor was particularly evident during the worst phase of the Covid-19 pandemic when travel also represented a health risk for voters.

DOI: 10.13134/2704-9043/2-2022/2

Transparency and Digital Technologies in Public Procurement During the Pandemic

In the fight against the pandemic, the Italian Government adopted strong simplification measures of the Public Procurement system, with the purpose of ensuring the quick delivery of essential goods and services and in the hope of avoiding the stop of many relevant economic activities. these measures simplified the procedure for Public Tenders by eliminating some controls and disclosure obligations. Yet these measures brought out a trade-off between transparency and simplification that damaged the possibility of democratic control over public action. E-procurement 2.0 could make it possible to overcome this trade-off. The article will start with the analysis of the principle of transparency and its difference with inferability, it will then analyze the Italian governance through the pandemic and touch on the new e-procurement systems as a possible solution to the lack of inferability of public action.

DOI: 10.13134/2704-9043/2-2022/3

The European Courts Faced with the Unknowns of Predictive Justice

First of all, this paper considers the notion of predictive justice, assessing the new possibilities it opens up and, at the same time, the potential dangers associated to the application of algorithmic computer tools to the legal field: especially, upheaval of the system and hierarchy of the sources of law, algorithmic bias and the black box problem. These issues must be considered distinguishing the use of predictive justice by the judges from its use by the parties, their lawyers and legal advisors. Then, the paper focuses on the European Court of Human Rights and on the Court of Justice of the European Union, wondering how the introduction of Artificial Intelligence tools could affect the operations and the procedures of such judges, taking in account their peculiarities and, as for the EU Court, the variety of its competences.

DOI: 10.13134/2704-9043/2-2022/4

The Italian Constitutional Court and the Surname of Children

The essay analyses Constitutional Court judgment No. 131 of 2022, which finally puts an end to discrimination between mother and father in the attribution of a child’s surname. Although the decision is to be welcomed, it raises problems concerning the relationship between the Constitutional Court and the legislative power. The essay examines these issues in connection with the child's personal identity and the limits of the Constitutional Court’s pronouncements.

DOI: 10.13134/2704-9043/2-2022/5

The Attribution of Surnames in Italian Law after the Constitutional Court’s Judgment n. 131/2022: Current Situation, New Challenges and Some Proposals for Integration from Spanish Law

The Judgment of the Italian Constitutional Court no. 131 of 2022, to the analysis of which a large part of this paper is dedicated, has declared the unconstitutionality of Art. 262(1) of the Italian Civil Code, introducing two important modifications in the system of attribution of surnames to children: on the one hand, it establishes that, in the absence of agreement, the child will receive the surname of both parents, making it the general rule and thus putting an end to the automatic attribution of the paternal surname. And, in the event that the parents decide to attribute the child exclusively the surname of one of them, this may be the paternal or maternal surname, putting an end to the impossibility of the child receiving only the maternal surname. But this raises new challenges, such as the determination of the order of surnames in cases of double surnames, the possible multiplier effect of surnames in successive generations or the way in which the principle of family unity is to be guaranteed. These questions will be addressed by bringing up the solutions offered by the Spanish system, where the double surname has traditionally been the general rule, and which may therefore be useful for integrating the new Italian system of attribution of surnames.

DOI: 10.13134/2704-9043/2-2022/6

El derecho a usar el apellido de la madre en primer lugar. Estado de la cuestión en el derecho español

Based on a brief analysis of the Italian Constitutional Court decision 131/2022, of April 27, this paper aims to explain the Spanish civil law reforms that have been carried out to eliminate discrimination against women in determining the order of children's surnames. It is shown that the abandonment of the rule of precedence of the paternal surname has occurred not only because of the application of the principle of equality between parents, but also because of the consideration of the minor’s best interest principle as a criterion to determine the order when parents do not agree before registration.

DOI: 10.13134/2704-9043/2-2022/7

Institutional Teaching Today. On the 50 th Edition of “Istituzioni Di Diritto Civile” by Alberto Trabucchi

DOI: 10.13134/2704-9043/2-2022/8

Understanding the Challenges of AI in the EU Legal Framework: Three Volumes Edited by A. Pajno, F. Donati and A. Perrucci

DOI: 10.13134/2704-9043/2-2022/9

The Defence of the Rule of Law in the Age of Constitutional Erosion: the Role of Constitutional Courts

DOI: 10.13134/2704-9043/2-2022/10