University of Bologna Law Review
https://bolognalawreview.unibo.it/
<p>The <strong>University of Bologna Law Review – ISSN 2531-6133 (Online)</strong> is a gold open access and double blind peer-review legal journal run by University of Bologna School of Law students, and published by the Department of Legal Studies of the AMS University of Bologna (Italy). </p>Department of Legal Studies. Alma Mater Studiorum - Università di Bolognaen-USUniversity of Bologna Law Review2531-6133<p>The copyright of all the manuscripts on this journal belongs to the respective authors.</p><div><a href="http://creativecommons.org/licenses/by/4.0/" rel="license"><img src="https://i.creativecommons.org/l/by/4.0/88x31.png" alt="Creative Commons License" /></a></div><p>This journal is licensed under a <a href="http://creativecommons.org/licenses/by/4.0/" rel="license">Creative Commons Attribution 4.0 International License</a> (<a href="http://creativecommons.org/licenses/by/4.0/legalcode">full legal code</a>). <br /> See also our <a href="/about/editorialPolicies#openAccessPolicy">Open Access Policy</a>.</p>Origins of the Sino-American Trade War: A Case Study of Three Shakespearean Proverbs on Expectations
https://bolognalawreview.unibo.it/article/view/18311
Raj Bhala
Copyright (c) 2023 Raj Bhala
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2023-11-022023-11-028211010.6092/issn.2531-6133/18311The Problem with the Global Notion of “Environmental Sustainability”
https://bolognalawreview.unibo.it/article/view/18838
<p>This article reflects on the international notion of environmental “sustainability” from the normative perspective. As a norm, it has been commonly analogised to “justice” — meaning the failure to uphold such would constitute a “wrong”. At its face value, this positive understanding should be welcomed as it signals and promotes the importance of sustainability. However, this article takes the role of the Devil’s advocate and argues that this analogy does more harm than good. It has over-glorified the notion of environmental sustainability because injustice is — at least in theory — an absolute wrong in all circumstances, but unsustainability is not. On the one hand, the public is being increasingly instilled with the normative idea that unsustainability is wrong. On the other hand, unsustainable acts are not necessarily outlawed and may even be endorsed. This undermines the rule of law and its perception because the law, in effect, is selectively allowing and sanctioning different acts involving the exact same wrong. This goes against the rule-of-law requirement of consistency. If the world truly cares about sustainability, it should be accorded the same paramount status as “justice”, so that it will be upheld to the greatest possible extent. If this is not possible, there is still a pressing need to state the standingof the norm, accurately, to avoid creating an expectation gap and causing further harm to the rule of law.</p>Martin Kwan
Copyright (c) 2023 Martin Kwan
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2023-12-282023-12-28827510010.6092/issn.2531-6133/18838Effective Recognition and Protection of Non‐Binary Gender Identities in the Council of Europe Framework
https://bolognalawreview.unibo.it/article/view/18945
<p>Non-Binary gender identity is slowly growing in visibility across the globe. In at least seven Member States of the Council of Europe, some judicial, administrative or legislative bodies have already started organising a form of legal recognition for gender identities outside of the binary through the creation of ”third” gender categories and “X” gender markers. This trend is growing fast and the European Court of Human Rights should pronounce itself soon on a potential positive obligation to organize such recognition in the case of Y v. France (pending). In this context, this research reflects on the foundations and flaws of the organisation of gender registration in the Council of Europe Member States. The main focus in this sense is put on the human rights law framework of the Council of Europe and specifically the right to respect for private life (Article 8 of the European Convention on Human Rights (E.C.H.R.)), the prohibition of inhuman and degrading treatment (Article 3 E.C.H.R.) and the freedom of expression (Article 10 E.C.H.R.) in light of the prohibition of discrimination (Article 14 E.C.H.R.). Furthermore, it reflects critically on the recent legal developments that led to the use of “X” gender markers to highlight their inadequacy. In doing so, it points towards the possible abolition of gender registration – or at the very least its suppression from identity documents.</p>Elias Tissandier-Nasom
Copyright (c) 2023 Elias Tissandier-Nasom
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2024-01-232024-01-238210116810.6092/issn.2531-6133/18945The Court of Justice of the E.U.: A Contextualist Court
https://bolognalawreview.unibo.it/article/view/18492
<p>The Court of Justice of the European Union (E.U.) is sometimes labelled “a teleological court”. In this paper I will show why it is a misleading label. Then I will propose a more appropriate label for it – “a contextualist court” – and describe what such a label reveals about the interpretation of E.U. law by the Court of Justice. In particular, I will show that the contextual/systemic arguments are the most defining feature of the Court’s legal reasoning and that those arguments are essential for the Court’s use of other categories of interpretive arguments: textual/linguistic, purposive/teleological, and historical/intentional. I will also discuss what are the values promoted by such an approach to the interpretation of E.U. law. In the end, I will demonstrate, using a recent case study, that the Court’s interpretive approach leads to integrationist outcomes less often than is usually thought. This challenges accounts built on the alleged integrationist bias of the Court of Justice, which is often used interchangeably with the label “teleological”.</p>Davor Petrić
Copyright (c) 2023 Davor Petrić
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2023-11-302023-11-3082115210.6092/issn.2531-6133/18492Contract Law and Public Justification
https://bolognalawreview.unibo.it/article/view/18609
<p>In<em> Justice in Transactions</em> and elsewhere, Peter Benson presents his theory of contract law, “contract as a transfer of ownership”, as being capable of providing a public basis of justification for court decisions on contracts. In this article, I argue that Benson’s theory of public justification of judicial decisions is a sort of consensus theory according to which public justification requires reasons shared by the justificatory constituency or members of the public. In Benson’s case, certain reasons are taken as shared because they are constitutive of the practice of contract law. One of the main theses of the article is that, for Benson’s theory of public justification to hold, the public justification must be composed only of those citizens for whom the practice of contract law as a whole is legitimate. The exclusion of other citizens (that is, those who regard contract law as illegitimate), however, does no greater damage to Benson’s theory. In addition, I also argue that considerations about the public justification of judicial decisions do little to defend the thesis that contract as a transfer of ownership is the best interpretive theory of contract law.</p>Leandro Martins Zanitelli
Copyright (c) 2023 Leandro Martins Zanitelli
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2023-12-072023-12-0782537410.6092/issn.2531-6133/18609