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MPHAEA & Marble Cake: Parity & the Forgotten Frame of Federalism
Get PDFFederal parity laws, and their state equivalents, have been shown to increase access to substance use disorder (SUD) treatment, by decreasing the cost of SUD treatment borne by the insured, and has resulted in little increase in health plan costs. Despite these improvements, the effects of parity on access to SUD treatment have been lower than expected. Recent reports suggest that states have varied in their enforcement parity, failures which may explain why persons surveyed still report having inadequate insurance coverage for SUD treatment despite the parity legislation. While other articles have offered suggestions for improving parity, most have lumped mental health and substance use disorder treatment coverage together in their analysis and recommendations. This paper focuses exclusively on SUD treatment and its distinct institutional history. Aside from focusing exclusively on substance use disorder treatment, this paper contributes to the literature by analyzing parity implementation through the lens of theories of federalism. It argues that in order for parity implementation to be effective, it must account for the current ideological divisions that have characterized intergovernmental relationships for nearly a decade. This paper demonstrates how theories of federalism and intergovernmental relations are particularly useful in analyzing the implementation of health insurance parity reform because they suggest that some of the implementation issues that have arisen were due to the structure of the division of federal/state responsibilities. In doing so, this paper suggests alternate structures for dividing the responsibilities for enforcement
The International Law Commission\u27s First Draft Convention on Crimes Against Humanity: Codification, Progressive Development, or Both?
No full textIn 2017, the International Law Commission (“ILC”) which was established by the UN General Assembly in 1947 to assist States with the promotion of (1) the progressive development of international law and (2) its codification, adopted on first reading a draft convention on crimes against humanity which it transmitted to States for comments. The draft convention seeks to help fill the present gap in the law of international crimes since States criminalized genocide in 1948 and war crimes in 1949, but missed the opportunity to do so for crimes against humanity. This Article examines the first reading text, as submitted to States in August 2017, using the lens of the ILC’s two-pronged mandate. Part II explains how the ILC selects new topics and the reasons why it decided to study crimes against humanity with the view to proposing a convention. Part III discusses positive features of the draft crimes against humanity convention, highlighting key aspects of each of the draft articles. Part IV examines challenges posed by the ILC’s definition of the crime, immunities, amnesties, and the lack of a proposal on a treaty monitoring mechanism. The final part draws tentative conclusions. The author argues that, notwithstanding the formal distinction drawn by the ILC Statute between progressive development, on the one hand, and codification, on the other hand, the ILC’s approach to the crimes against humanity topic follows an established methodology of proposing draft treaties that are judged likely to be effective and broadly acceptable to States rather than focusing on which provisions reflect codification and which constitute progressive development of the law. It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law
The SEC and Regional Inequality
No full textPeter Robau is the Wagner Fellowship recipient 2019-2020 for original research at intersection of regulatory policy and capital markets. During his visit to FIU College of Law, he will be performing research for his article on The SEC and Regional Inequality.https://ecollections.law.fiu.edu/visiting-researcher-profiles/1030/thumbnail.jp
The Legal Legacy of the Special Court for Sierra Leone
No full textThis book examines whether the Special Court for Sierra Leone (SCSL), which was established jointly through an unprecedented bilateral treaty between the United Nations (UN) and Sierra Leone in 2002, has made jurisprudential contributions to the development of the nascent and still unsettled field of international criminal law. The monograph, which focuses on the main legal legacy of the SCSL, opens with an examination of the historical and political circumstances which led to the outbreak of a notoriously brutal civil war in Sierra Leone which lasted betweenMarch1991 and January 2002 and led to the deaths of approximately75,000 people. Following a discussion of the creation, jurisdiction, and the trials conducted by the SCSL, the author examines the SCSL’s unique personal jurisdiction over persons bearing “greatest responsibility” for the serious crimes committed in Sierra Leone and the implications of its use in future ad hoc international tribunals; the prosecution of the novel crime of “forced marriage” as other inhumane acts of crimes against humanity; the prosecution of the war crime of recruitment and use of children under the age of fifteen for the purpose of using them to participate actively in hostilities; as well as issues of immunity for the serving head of state of Liberia, which President Charles Taylor sought to invoke to block his own trial for international crimes before the SCSL. The book then discusses the status of blanket amnesties under international law, and critically evaluates the SCSL’s ruling that such a domestic measure could not block prosecution of universally condemned crimes before an independent international tribunal. Lastly, the book evaluates the tenuous interaction between truth commissions and special courts given both their simultaneous operation in Sierra Leone and distinctive mandates aimed at reconciliation and punishment. The author demonstrates that the SCSL, as the third modern international criminal tribunal supported by the UN, made some useful jurisprudential additions on many of these topics, and in some cases broke new ground, and that these represent a valuable legal and judicial contribution to the development of the nascent field of international criminal law.https://ecollections.law.fiu.edu/faculty_books/1274/thumbnail.jp
National Report for the Venezuela (2020)
No full textThis National Report describes the legal framework of domestic and international arbitration in the Bolivarian Republic of Venezuela (“Venezuela”). It includes the most relevant and recent case law, and other important aspects that have shaped the development and use of commercial and investment treaty arbitration in recent times. This Report also discusses the regulation and use of mediation/conciliation given its distinction – alongside arbitration – as a non-judicial form of dispute resolution. The description offered here also considers the social, economic and political context insofar it is relevant to the discussion about arbitration in Venezuela. This Report is divided into nine chapters, including this introduction (Chapter I). Chapters II to VII cover different aspects of commercial arbitration, from the arbitral agreement to the means of recourse against the award. Chapter VIII discusses the current state of mediation/conciliation in Venezuela, and Chapter IX addresses the main issues involving investment treaty arbitration. An unofficial English translation of the Commercial Arbitration Law of 1998 (Ley de Arbitraje Commercial, “CAL”) is included as Annex I. Venezuela modernized its arbitration legislation in the late twentieth century with the ratification of five major treaties, the enactment of a special commercial arbitration statute, and the inclusion of a constitutional provision granting arbitration – and other alternative dispute resolution mechanisms – a preeminent place in the country\u27s legal system. (1) In addition – during the nineties – Venezuela entered into a number of bilateral investment treaties (“BITs”) with other countries, which included arbitration provisions as the exclusive means to resolve any disputes arising between foreign investors and Venezuela as a host state. As we will explain later, some of these BITs, noticeably the ones with The Netherlands, Canada and Spain, served as the basis for a number of investor-state arbitration claims brought against Venezuela during the last decade. Most of the cases arose from the expropriations of assets by the Venezuelan government, which affected both domestic and foreign investors and garnered the attention of the international arbitration community. Predictably, after the initial upsurge of claims logged against Venezuela, the government terminated the BIT with the Netherlands, denounced the ICSID Convention, and took other protective measures to prevent future claims. We discuss some of the issues surrounding investment arbitration in Chapter IX. Since the majority of this report is focused on commercial arbitration, the following chapter describes laws adopted, and the most relevant judicial decisions that have contributed to shape the development of arbitration in Venezuela. The subsequent parts if this report will delve into other important features of this dispute resolution mechanism, thus offering a comprehensive picture of its current status.https://ecollections.law.fiu.edu/faculty_books/1276/thumbnail.jp
The Chimera of Smart Contracts
No full textThis comprehensive Research Handbook examines the continuum between private ordering and state regulation in the lex mercatoria, highlighting constancy and change in this dynamic and evolving system in order to offer an in-depth discussion of international commercial contract law. International scholars from a range of jurisdictions and legal cultures across Africa, North America and Europe, dissect a plethora of contract types, including sale, insurance, shipping, credit, negotiable instruments and agency against the backdrop of key legal regimes commonly chosen in international agreements.https://ecollections.law.fiu.edu/faculty_books/1299/thumbnail.jp
A Voice in the Development of Amazonia: The Constitutional Rights to Participation of Indigenous Peoples
No full textThis chapter looks at Indigenous rights in Amazon countries, comparing the substantive law with its practical implementation. While constitutions evidence a clear intent to protect Indigenous groups, enforcement is often problematic, and the rights of Indigenous populations have rarely been vindicated. Through an analysis of some case studies in Amazonia, such as the Chevron oil spill in Ecuador, the Belo Monte Dam in Brazil, and the TIPNIS Project in Bolivia, this chapter discusses whether these constitutional provisions are being respected. Almost 400 Indigenous groups currently live throughout the Amazon region, which is shared by nine countries. Due to their close proximity to the region’s rich natural resources, Indigenous groups are some of the most affected populations by infrastructure projects and other initiatives to promote socio-economic development. These groups have suffered marginalization by their governments, and were traditionally excluded from the approval process of these projects. However, after a series of constitutional revisions, most countries embraced provisions recognizing Indigenous rights and environmental protections, including the right to Free, Prior, and Informed Consent and the right to participation. The recognition of constitutional environmental rights for Indigenous communities was the first step in a long battle to ensure the voices of Indigenous groups are heard, both politically and in terms of economic development plans. Although Indigenous groups and their lands are constitutionally protected, actually putting these rights into practice has been proven a challenge. In most cases, states have difficulty redressing environmentally harmful practices when it conflicts with plans for economic development.https://ecollections.law.fiu.edu/faculty_books/1300/thumbnail.jp
Panel 3: Architecture, Fashion and Design
No full textItalian Style: on Law, Architecture and Design “Made in Italy”
Giovanni Marini, Università degli Studi di Perugia
Italian design, including interior design, urban design, fashion design and architectural design is recognized as being worldwide trendsetter. Italy today still exerts a vast influence worldwide. There were different trends in the 20s: a classical and a new one (“Rationalist”). After WWII, Italy had a true avant-guard moment. “When intellectuals lost their battle in 1948 and with it any chance to change land law and re-organize society, architects turned their attention to the object, the object conveyed meaning and showed direction.” In the 60s and 70s, Italian interior design reached its pinnacle (“Bel Design and Linea Italiana”). In MoMA New York, Emilio Ambasz organized an exhibit Italy, The New Domestic Landscape Achievements and Problems of Italian Design. In 1968, it developed an interesting trend (“radical design”) which opposed to the product design and mainstream “buon gusto.” The MoMA exhibit was also the end of Italian polycentric design, which focuses mainly on furniture (Italian) design. Modern interior design has changed the meaning of style and elegance, and many interior designers use Italian or Italian-inspired style in their work. The essay will analyze the birth and developments of the Italian style and its relationship to architectural trends in the globalization process, and with the ongoing transformation of capitalism and economic system. Fashion Made in Italy: Tradition, Protection and a Look into a Sustainable Future
Barbara Pozzo, Università degli Studi dell’Insubria, Como
The essay focuses on fashion and will cover five distinct areas. First, the measures that the Italian government has launched in recent years to protect “traditional Italian brands.” Second, the various initiatives of certification and labeling in order to protect “made in Italy” fashion products. Third, the “made in Italy” label and the enormous problem of counterfeiting. Fourth, the use of Blockchain as a strategy for the protection of “made in Italy” products. Fifth, how sustainability is, or should become, a part of the “made in Italy” paradigm. Culturally Identifiable Fashion: what role for GI’s?
Janewa Osei-Tutu, Florida International University College of Law
Geographical indications (GI’s) are a specialized form of intellectual property right. A GI is used when some quality, characteristic, or reputation of a good is attributable to its geographic origin. To the extent that geographic location and culture overlap, GI’s could be described as a form of cultural protection. Italy, which is known for both its food and fashion, has GI’s for a range of items, such as extra virgin olive oils, pastas, and wines. But, what is the role of GI’s when it comes to other aspects of culture, such as fashion? For example, the famous Italian designer, Valentino, received both praise and criticism for footwear modeled on royal sandals from Ghana. To what extent can GI’s be used as a form of cultural protection that extends beyond food and wines to protect culturally identifiable fashion items