894 research outputs found
The Battle to Define the Scope of Attorney-Client Privilege in the Context of Insurance Company Bad Faith: A Judicial War Zone
[Excerpt] The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. \u27 The privilege is [d]eeply rooted in public policy, and plays a \u27vital role\u27 in the administration of justice. As such, the privilege is traditionally deemed worthy of maximum legal protection \u27 and it remains one of the most carefully guarded privileges and is not readily to be whittled down. The privilege has come under assault in the insurance bad faith context in recent decades resulting in a whittling down of the privilege for insurance companies as a target party. Over the past couple of decades, various courts have rendered significant decisions regarding implied waiver of the privilege in the insurance bad faith context. These courts have seemingly set a minimal threshold for waiver that is the functional equivalent of a per se waiver rule, a rule which is inconsistent with the strength of the protection normally provided the attorney-client privilege in other contexts involving non-target parties. In contrast, Arizona, one of the jurisdictions which previously appeared to create such a per se rule, may be, with recent intermediate court decisions, redefining the battle for the scope of the attorney-client privilege in the insurance bad faith context. The Arizona decisions on this issue serve as a case study regarding the analytic gymnastics courts have engaged in to create implied waiver in the insurance bad faith context. However, these decisions may also set the stage for the judicial combatants. Will the battle result in a return to the more conservative protections of the privilege provided in other contexts or will it end with a broad per se implied waiver in the insurance context? In Part I of this article, the attorney-client privilege is discussed generally, as well as specifically, in the context of insurer bad faith. In Part I.A, a general overview of the attorney-client privilege is presented. In Part I.B, express and implied waiver of the attorney-client privilege are discussed. The courts have disagreed on the general contours of the test to be applied in determining whether an implied waiver of the attorney-client privilege has occurred, and what should be the precise formulation for that determination. The courts have also disagreed as to when a client may be deemed to have injected privileged attorney-client communications into a case, causing an implied waiver. There are three general approaches to determine whether a litigant has impliedly waived the attorney-client privilege. Each of these approaches is discussed. In Part I.C, the article discusses general principles regarding insurance bad faith and how the direct assertion of the advice-of counsel defense results in waiver of the attorney-client privilege in that context. The nature and scope of the advice-of-counsel defense is explored. In Part II, the battle over the changing boundaries of waiver by implication is examined by comparing the case authority supporting expansion versus the development of three published decisions from the courts of Arizona. The discussion starts in Part IIA, where the expansion of waiver by implication is discussed. Part II.B examines a decision from the Arizona Supreme Court which followed the trend of substantial expansion of the waiver-by-implication rule and then examines two subsequent decisions from the Arizona Court of Appeals which have applied the Arizona Supreme Court precedent to reach two very different and arguably contradictory results. The first of these appellate decisions arguably takes the expansion of implied waiver to the next level-a per se rule triggering automatic waiver as a result of defending a bad faith case on a subjective belief of acting in good faith. The second appellate decision, however, takes a step back from the ledge and seeks to limit the prior ruling to its facts rather than creating a per se rule in those circumstances. Part II.C seeks to synthesize and define the battle in Arizona over the scope of implied waiver, discussing the chilling effect continued expansion of implied waiver can have upon the advice that insurance companies seek from counsel and how the recent decision from Arizona may serve as a warm front to thaw the chill that has been in the air for the last two decades
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The economic impact of consumer copyright exceptions: a literature review
Advances in the technology available to consumers have fundamentally altered the relationship between authors, rights-holders and consumers with regard to copyrighted creative works. The copyright system in the UK is undergoing a gradual process of reform to reflect this new reality.
In 2006, Andrew Gowers, a former editor of the Financial Times, presented a report into the state of intellectual property in the U.K. Among his policy recommendations were three proposed changes to the copyright exceptions system which alter the way in which consumers can interact with copyrighted works. Gowers proposed introducing copyright exceptions for:
- Format shifting, for instance the transfer of a piece of music from a CD to an mp3 player.
- Parody, caricature and pastiche.
- Creative, transformative or derivative works. In our context, this definition includes user-generated content.
Our review examines the existing literature on the possible economic effects of these proposed changes to the copyright exceptions system, specifically whether the introduction of these proposed changes would cause economic damage to rights-holders. Whilst the economic issues surrounding copyright infringement via file-sharing and commercial "mash-ups" are interesting and important, our review is focused solely on copyright
A Case-Centered Approach to the Puzzle of Protest-Repression Interactions
This paper investigates the interaction of protest and repression, drawing on
Islamist protests and state repression in Tunisia and Algeria in the early
1990s. Putting the findings from large-n quantitative studies to the test in a
case-centric design, it identifies serious shortcomings in current, largely
static, approaches and proposes a shift towards a dynamic understanding of the
relationship between protest and repression: Specific repertoires and
practices of protest interact with and make more likely specific repressive
responses (and vice-versa) in cycles of escalation or de-escalation. Building
on this dynamic understanding, the paper specifies escalating and de-
escalating practices and context conditions
Importing the Revolution: Institutional change and the Egyptian presence in Yemen 1962-1967
On the night of 26 September 1962, a column of T-34 tanks trundled through the streets of Sanaa and surrounded the palace of the new Imam of Yemen, Muhammad al-Badr, who had succeeded his father Imam Ahmad (r. 1948-62) only one week earlier. Opening fire shortly before midnight, the Yemeni Free Officers announced the ‘26 September Revolution’ on Radio Sanaa and declared the formation of a new state: the Yemen Arab Republic (YAR). The revolution drew on support from a domestic coalition of military officers, Aden-based traders and trade-unionists, reformist Imamate officials, and tribal leaders the Imam had antagonised it..
Civil War and State Formation: Exploring Linkages and Potential Causality
This working paper offers a perspective on contemporary
debates about state-formation, contributing to
ongoing thinking about the role of conflict and specifically
civil war in the emergence of different kinds of
political orders.
Based on a reconceptualization of the likely nature
of the linkages between civil war and political order,
the working paper develops a set of potential causal
pathways linking common conditions of civil war
to likely wartime changes in the political settlement
and state institutions. In doing so, it aims to provide
an organising framework for future research to explore
conditions under which different pathways predominate
and aims to offer an analytical tool to policy makers
and researchers to consider potential impacts and
consequences of violent conflict in contexts of concern
The Moldovan Identity Crisis: A Young State, an Old Nation, and the Search for a National Identity
The question of national identity in modern states is one that is both elusive and ever-changing; however, the fate of a young state could very well depend on grasping this concept. This study focuses on defining national identity, and solving the dilemma of an absent, or otherwise unarticulated national identity in the Republic of Moldova. Moldova, a former member of the Soviet Union and independent since 1991, has already been through a civil war due to their lack of cohesion. The country’s history of numerous invaders, conquerors, and acquisitions starting in the 14th century has led to an eclectic population who aligns themselves with Russian culture, Romanian culture, or that of various native groups. After more than 20 years of independence, people around the world still struggle with identifying the small state, and Moldovans struggle with defining their relationship to their country and fellow citizens. Through archival research, field research, and interviews with Moldovan emigrants, intellectuals, and officials, this study recognizes the need for a national identity in creating unity and a sense of nationalism in Moldovan citizens
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