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Arbitrating Copyright Disputes in Egypt
Get PDFEgypt is witnessing increasing difficulty in implementing and practicing protectionist policies for intellectual property rights, which includes copyright as a fundamental element. Since the Egyptian judicial system is exclusively concerned with adjudicating all disputes, it has become increasingly burdened in recent decades due to this monopoly. As a result, the Egyptian judiciary is witnessing a significant slowdown in resolving conflicts and procedural obstacles which delay the restitution of Intellectual property rights to its owners. Thus, we believe that applying arbitration will contribute to resolving copyright disputes in advance on one hand and will encourage an attractive climate in such matters that fall within the scope of copyright and stimulate the energies of innovation and creativity in another hand
Public Policy and the Insurability of Cyber Risk
Get PDFIn June 2017, the food and beverage conglomerate Mondelez International became a victim of the NotPetya ransomware attack. Around 1,700 of its servers and 24,000 of the company’s laptops were suddenly and permanently unusable. Commercial supply and distribution disruptions, theft of credentials from many users, and unfulfilled customer orders soon followed, leading to losses that totaled more than $100 million. Unfortunately, Zurich, which had sold the company a property insurance policy that included a variety of coverages, informed Mondelez in 2018 that cyber coverage would be denied under the policy based on the “war exclusion clause.” This case, now pending, will be a watershed moment for the cyber insurance industry, highlighting the great ambiguity around the insurability of certain types of cyber risk and the scope of coverage that insurers will provide in the case of a cyber incident.
The literature on the insurability of cyber risk has focused all of its attention on questions of economic efficiency and viability. Scholarship has, for example, examined the actuarial challenges in cyber risk modeling and the likelihood for adverse selection resulting from information asymmetries and lack of historical claims data. Scholars have so far avoided a different set of considerations rooted not in economics but rather in public policy analysis of societal values. This paper lays the framework for such an analysis. Relying on traditional insurance and torts jurisprudence, the paper makes the public policy case for limited legal interventions in the indemnification of three controversial categories of cyber harm: (1) acts of cyber terrorism or state-sponsored cyber operations; (2) extortion payments for ransomware attacks; and (3) administrative fines for violations of statutory data protection regulations. In so doing, the paper highlights systemic challenges to cyber insurance underwriting while explaining insurers’ role in increasing societal cyber posture by reducing the likelihood of moral hazard and suboptimal cyber-norms enforcement
A Memorial Tribute to Professor John J. Murphy
Get PDFProfessor John J. Murphy was my very first connection to the University of Cincinnati College of Law—and to the legal academy more generally. What began with an hour-long conversation in August 1993 lead to a wonderful twelve years as faculty colleagues and a dear friendship that continued for the fourteen years after I joined the Indiana University Maurer School of Law. John was legendary for his energetic and inspirational classroom teaching. But as my colleague and friend, John taught me through his constant examples what it means to be a supportive mentor, a beloved professor, and a devoted spouse and parent
Developments in the Laws Affecting Electronic Payments and Financial Services
Get PDFThis survey year offered developments too numerous to cover, as often is the case. We debated which developments to include and decided to showcase different types of products and services, different providers, and different regulators. Part II views issues related to stimulus payments arising from the COVID-19 pandemic. Part III reports on litigation over whether retailers must offer gift cards printed in Braille. Part IV looks at recent actions of the Federal Trade Commission ( FTC ) related to payment processors and others. Part V describes amendments to the remittance regulation promulgated by the Consumer Financial Protection Bureau ( CFPB ). Part VI focuses on regulatory responses and enforcement actions aimed at cryptocurrencies and their providers. Part VII provides some conclusions and thoughts on what the coming year may bring
God Is My Roommate? Tax Exemptions for Parsonages Yesterday, Today, and (if Constitutional) Tomorrow
Get PDFIn 2019, the Seventh Circuit decided an Establishment Clause question that had been percolating through the courts for two decades. It held that the parsonage allowance, which permits “ministers of the gospel” to receive an untaxed housing allowance, does not violate the Establishment Clause of the Constitution. It grounded its conclusion in part on the “historical significance” test the Supreme Court established in its Town of Greece v. Galloway decision.
In coming to that conclusion, the Seventh Circuit cited a 200-year unbroken history of property tax exemptions for religious property. According to the Seventh Circuit, that history demonstrated that both the Founders and subsequent generations of Americans recognized that there was no constitutional problem with exempting parsonages.
The court’s historical significance analysis was fundamentally flawed, however. Had the court actually engaged with this history, rather than made the conclusory assertion of consistent and uncontroversial exemption, it would have seen at least two things that complicated its facile conclusion. Significantly, in treating the history of religious property tax exemptions as unbroken and consistent, the court elided the actual history, which was messy and varied. The actual history provides no support for the proposition that the Framers and those who followed viewed property tax exemptions as constitutional.
Even if the history were as clean as the Seventh Circuit portrayed it, that history would have been irrelevant to the question of the constitutionality of the parsonage allowance. The Supreme Court did not incorporate the Establishment Clause against the states until 1947, so states faced no Establishment Clause bar to exempting for religious property. And the federal government only made four attempts at taxing property, none of which expressly exempted religious property.
In this Article, I explore the historical and current tax exemptions for parsonages, and trace how states arrived at their current exemptions. Ultimately, I conclude that the historical significance test, as applied by the Seventh Circuit, does not support the constitutionality of the parsonage allowance. I further conclude that, given its complexity and the fact that attorneys and judges tend to be poor historians, the historical significance test is not well suited as a jurisprudential tool for analyzing Establishment Clause questions, and that courts should not adopt it
Lawyers for the Undocumented: Addressing a Split Circuit Dilemma for Asylum-Seekers
Get PDFThe immigration crisis at the border, since 2016, has seen children separated from parents, the detention of noncitizens increase, and record-breaking numbers of applicants denied entry into the United States. For individuals fleeing their home countries because of persecution, the hardship has been particularly severe. To start, the chances of gaining asylum have dwindled significantly. For those who are successful, a subsequent and crucial question is whether the lawyers who represent them can recoup their legal fees from the government.
Since 1980, a federal statute known as the Equal Access to Justice Act (EAJA) has allowed for a “prevailing party” to gain such recovery—but only where the government’s position is deemed not to be “substantially justified.” What this phrase means, however, has split the federal courts. The Fifth Circuit, for example, in a 2-1 decision, has recently ruled that the government’s opposition to an asylum petition will be seen as substantially justified—even if it loses—so long as the “totality” of its arguments are reasonable and believable. Yet, the dissent in this case, and other circuit courts of appeals, have stated a more lucid principle: where the government loses on the central issue of an asylum application, it should pay the noncitizen’s legal fees. Period.
This Article argues that the latter perspective is the more legally, analytically, and morally sound of the two. The Supreme Court has opted not to resolve the circuit split. However, this situation presents Congress with an opportunity to intervene, as this lack of uniformity has a serious implication. Noncitizens in immigration proceedings do not have a right to counsel; they are often dependent upon the private bar for pro bono legal assistance. If the odds are low that lawyers will be able to recover fees within those circuits that narrowly interpret the EAJA, then it is likely that the incentive to take up immigration cases in these jurisdictions will be correspondingly low as well. That some noncitizens would face greater difficulty in being able to access lawyers, because their case happens to be within an unfavorable circuit, is an outcome that offends the very core principles of equity and fairness
