Monetizing the incommensurable
within the 2011 Trento Lawtech Seminars Series
The Trento Law and Technology Research Group
Department of Legal Sciences
March 28th, 2011
Official site of the Seminar in Italian (to be clicked here)
Download Brochure (in Italian)
Materials for the seminar (to be posted here in Italian)
In Italy the award of non pecuniary damages poses new problems after that the landmark judgments issued by the Corte di Cassazione in November 2008 have clearly stated under which conditions these kind of damages can be awarded, finally doing away with most of the problems that for about 60 years have kept busy the Italian tort scholarship in an attempt to overcome the interpretative problems posed by the literal wording of article 2059 of the Italian Civil Code of 1942. Today firmly grounded on the theory of the constitutionally protected inviolable rights, the award of non pecuniary damages faces the age old challenges of quantification.
It appears to be essential in this respect to analyze the notion of commensurability, especially if one agrees that, when it reacts to a temporary or permanent clinical condition of the victim that can be assessed according to medical legal notions, the transfer of money elicited by the award of non pecuniary damages finds a widely accepted and trusted parameter of commensurability in the medical legal assessment of a bodily injury (as it is the case if one considers the Italian notion of “danno biologico”).
The issue is radically different when a constitutionally protected inviolable right, different from the right to health (as protected by art. 32 of the Italian Constitution), confronts the judge with the tricky task of monetizing the incommensurable, when any transfer of wealth operated under the label of a civil award is ontologically lacking of quantifiable objective parameters of evaluation, and cannot be defended from critics of inconsistency and irrationality. The issue clearly entails opening a frank discussion about the old philosophical question of the goals which could be attached to the award of damages in civil liability, and more generally of the goals of tort law, a set of questions which may find a new, fertile ground of analysis from the debate concerning the commensurabiliry of non pecuniary damages.
The seminar aims at eliciting new theoretical proposals which may be useful for the courts, which everyday are confronted with the somewhat esoteric task of monetizing the incommensurable. It purports to set the stage for a discussion conceived in order to blend in the traditional legal reasoning the points of view expressed on the issue from different disciplinary perspectives, such as Comparative Law, Economic Analysis of Law and Cognitive Sciences.
Place: “Alberto Silvestri” Conference Room – Faculy of Economics, via Rosmini 44 Trento
When: Monday ‐ March 28th, 2011
9.45 – Welcome greetings
Giovanni Pascuzzi (Prorector of the University of Trento)
9.50 – Introducing the issues
Umberto Izzo (University of Trento)
10.10 – Mario Barcellona (University of Catania)
10.30 – Claudio Scognamiglio (Tor Vergata University Rome)
10.50 – Irene Lincesso (Luiss University Rome)
11.10 – Carlo Bona (University of Trento)
11.30 – Debate
Luigi Gaudino (University of Udine)
Andrea Rossato (University of Trento)
Roberto Simone (Tribunal of Venice)
Scheduled interventions from the room
12.40 – Closing remarks
Roberto Pardolesi (Luiss University Rome)
13.00 – End of the Seminar