Some Remarks about Economic Analysis of Law in the Italian Case Law : Consequentialism or Equity in the Legal Reasoning?

The scope of the paper is to discuss whether Italian case law of the higher courts and, in particular, of the Civil sections of the Court of Cas- sation is familiar with the economic analysis of law approach, at least, in one of its many versions. The main issues that are illustrated by the Au- thor are as follows. First, although Italian legal scholars and judges use to evoke economic analysis of law, this approach as applied in the US is still alien to our legal culture. In this respect the US background portrayed in the book The Future of Law & Economics. Essay in Reform and Recollec- tion of Guido Calabresi is a good term of comparison to better understand the distance from the US tradition of this kind of economic analysis of law, let’s say, in the Italian style (EAL). In the second part, some paradig- matic examples of the uses of EAL in Italian case law are briefly sketched and commented. Such investigation discloses that, in the law in action, the references and arguments related to efficiency, costs, etc. – far from being part of some refined economic models or analysis – are rather close to the well-known set of consequentialist arguments, as portrayed by the Italian legal doctrine. The Author indeed examines the indeterminacy of these arguments that give relevance to the “consequences” and shows that, in our legal culture, the outcome of their uses is mainly an idiosyn- cratic ruling derived from equity.