Law Commons^™

Deficient Development Agreements, Roger Bernhardt

Publications

This article discusses a California case where the county attempted unsuccessfully to alter a parcel’s status by way of a development agreement rather than by a zoning amendment.

A Line Drawn In Water: Aquifers Beneath The Mexico-United States Border, Paul Stanton Kibel

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This article examines the conservation of the bi-national Mexicali-Imperial Aquifer and the litigation and Congressional response to the proposed lining of the All-American Canal from cross-border natural resource and international law vantage points.

Using Constitutional Adjudication To Remedy Socio-Economic Injustice: Comparative Lessons From South Africa, Eric C. Christiansen

Publications

This article seeks to explore the effectiveness of constitutional protection and court adjudication of social welfare rights as tools to address and remedy social injustice and economic inequality. The focus of this examination will be on South Africa and its post-apartheid Constitution that enumerates rights and protections intended to remedy the economic injustices of the country's past. This article argues that the model of adjudicating social rights in South Africa is exportable to other countries, while clarifying the reasonable expectations and potential contributions of such adjudication toward the achievement of socio-economic justice. Part I addresses two questions: first, why look …

The Key To Successful Independence: State-Funded Postsecondary Educational Assistance For Emancipated Foster Youth, Michele Benedetto Neitz

Publications

As individuals in state custody, children accepted into the foster care system have a substantive due process right to be free from harm. This due process right imposes an affirmative duty on states to protect foster youth and properly prepare them for emancipation. At the age of eighteen in most jurisdictions, youth emancipate from state custody into adulthood with the hope of successful independence. In reality, a large proportion of public
wards actually emancipate into homelessness, unemployment, and incarceration.

The public is increasingly recognizing the plight of youth aging out of foster care, and state and federal legislatures are responding …

Character And Credit: The Future Of Tenant Screening, Roger Bernhardt

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This article discusses two California Court of Appeal cases where tenants lost actions against credit reporting agencies.

Construction Moratorium As A Taking Monks V City Of Rancho Palos Verdes (2008), Roger Bernhardt

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This article discusses a California decision which held that a moratorium on building homes in a landslide area was a permanent taking and was not justified by nuisance principles.

Lease Disclaimers And Landlord Fraud Mcclain V Octagon Plaza, Llc (2008), Roger Bernhardt

Publications

This article discusses a California case where a lease disclaimer did not insulate the landlord from liability for fraud, or even from claims of negligent misrepresentation.

Liability Of Successor Landlord For Rent Overcharges: Baychester Shopping Ctr., Inc. V San Francisco Residential Rent Stabilization & Arbitration Bd. (2008), Roger Bernhardt

Publications

This article discusses a California case where the recovered from the current landlord for overcharges in a rent controlled apartment that the former landlord had collected.

Fighting Back Against A Power Plant: Some Lessons From The Legal And Organizing Efforts Of The Bayview~Hunters Point Community, Clifford Rechtschaffen

Publications

Although the environmental justice movement catapulted into national consciousness during the 1990s, as reflected most notably in President Clinton's 1994 Executive Order on Environmental Justice, communities of color still face an uphill struggle fighting specific siting decisions. One community in the midst of such a battle is Bayview-Hunters Point, a low and middle-income community in San Francisco, overwhelmingly comprised of people of color. It is home to San Francisco's two existing power plants, and is burdened with a very high concentration of the City's dirty industries. In 1994, the San Francisco Energy Company proposed siting yet another power plant in …

Full Sp[ ]Ed Ahead: Expanding The Idea Idea To Let All Students Ride The Same Bus, Stephen A. Rosenbaum

Publications

Some commentators and public officials have suggested that the schoolhouse door to special education services has opened too widely and too indiscriminately... under the Individuals with Disabilities Act (IDEA). In her Article responding to calls to shrink the eligibility definition, Professor Wendy Hensel alludes to The Short Bus that students with disabilities often ride. Meanwhile, No Child Left Behind (NCLB) — the most significant federal education policy reform in place for general education students — dictates a level of academic progress and instructional interventions to assist all pupils — those with disabilities along with other marginalized students.

In this Essay, …

The Juris Doctor Is In: Making Room At Law School For Paraprofessional Partners, Stephen A. Rosenbaum

Publications

The 60th anniversary of the United States’ oldest continuous legal clinic presents an opportunity to reexamine the pedagogical machinery, reshape the curriculum, reflect on advice not taken, and reignite the “movement for change” in (clinical) legal education. The author recommends a modest retooling: Law schools should offer a degree program for non-lawyer advocates. This would capitalize on the many attributes that paralegals bring to the profession.

The author's focus is on how teaching paralegals or lay advocates in law schools can foster less costly non-adversarial dispute resolution, sensitivity to human and cultural aspects of client rapport, and co-education between members …

Thirty Years After Anita Bryant's Crusade: The Continuing Role Of Morality In The Development Of Legal Rights For Sexual Minorities - Introduction: The Florida Example, Anthony S. Niedwiecki, Williams E. Adams, Jr.

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No abstract provided.

Foreword And Acknowledgments: About The Study Space Project, Colin Crawford

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Study Space: Evaluations of Human Habitats and Habits in the 21st Century, is an intensive series of workshops, held at diverse locations around the world, the goal of which is to acquire a deeper understanding of the legal, policy and human challenges posed by the global growth of megacities. Study Space intends, at various times and in different places, to provide a vehicle for progressive scholars and graduate students from varied backgrounds and disciplines to study, learn and seek to understand experientially this trend in all of its implications - for identity and self-determination, for participatory democracy, for equality and …

Saving Biodiversity At The Crossroads Of The Americas, Colin Crawford

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This paper will examine the ecological status and prospects of Panama's reverted areas, meaning those areas returned to the country with the reversion of sovereignty over the Panama Canal lands. Following an introductory Part I that highlights Panama's biological diversity, Part II will isolate some of the development pressures facing the reverted areas and those closest to central Panama City in particular. In addition, Part II will describe the extent of the reverted areas and identify their biological, environmental, social and economic value both to Panama City and the Republic. Part III will discuss the importance of protecting the reverted …

The Double Weakness Of Girls: Discrimination And Sexual Violence In Haiti, Benedetta Faedi Duramy

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This Note is about poverty, inequality, and sexual violence. Using empirical research, it explores cultural beliefs, practices of abuse, and criminal justice responses to the widespread and systematic rape affecting girls in the shantytowns of Port-au-Prince, Haiti. Dominated by the vestiges of the French colonization and plagued by destitution and political instability, Haiti faces rampant violence and disarray leaving the majority of its population in unbearable conditions of despair. Often regarded as a pariah state by the international community and erratically supported or invaded by foreign players, Haiti remains a forgotten country despoiled by human rights violations, decadence, and turmoil.

Book Review Of: 'Injury: The Politics Of Product Design And Safety Law In The United States', By Sarah S. Lochlann Jain, Princeton University Press, 2006, William T. Gallagher

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No abstract provided.

Crisis On The Immigration Bench: An Ethical Perspective, Michele Benedetto Neitz

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The purpose of this article is to suggest a new lens through which to examine the crisis in immigration courts: judicial ethics. Ethical considerations frequently play a decisive role in the resolution of immigration cases, in part because the outcomes for litigants in immigration courts can depend almost entirely on the attitude of the judge. Accordingly, the acknowledged crisis in immigration courts has severe implications for judicial ethics. Because the term "judicial ethics" encompasses a broad array of principles, this article will narrow its focus to bias and incompetence on the part of immigration judges in the courtroom. Part II …

Patrick Coughlin: Smoking Joe Camel, Frederick White

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No abstract provided.

The Essential Law Library Journal, Frank G. Houdek

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As a kickoff to the celebration of the centennial volume of Law Library Journal, Professor Houdek presents a selective, annotated list of "essential" readings culled from the preceding ninety-nine volumes of the Journal. The list represents pieces that anyone involved in law librarianship, whether a novice or someone experienced in the field, should read and absorb.

Abbott, Aids, And The Ada: Why A Per Se Disability Rule For Hiv/Aids Is Both Just And A Must, Scott Thompson

Publications

HIV/AIDS should be classified as a per se disability under the Americans with Disablities Act. Such a ruling is justified by the plain language of the act itself, legislative history, administrative regulations, and court precedent. Absent such a ruling, individuals with HIV must demonstrate that they have (1) an mental or physical impairment, (2) that substantially limits (3) a major life activity. While most courts to address the applicability of the ADA to individuals with HIV/AIDS have found that such individuals are disabled because HIV impairs the major life activity of reproduction, such an interpretation leaves open the possibility that …

Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom

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No abstract provided.

The Tax Treatment Of Advance Receipts, David Hasen

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Under the present income tax, some advance receipts are neither taxable on receipt nor deductible on repayment, while others are taxable when received and deductible when repaid or paid for. From a purely theoretical perspective, it remains unclear why different sets of rules apply in different cases. For example, if the fact of unrestricted control over the payment compels the conclusion that it is income, then most advance receipts, including loan proceeds, should be included in income immediately. Conversely, if the presence of an offsetting liability compels the conclusion that the payment is not (yet) income, then most advance receipts, …

Unwinding Unwinding, David Hasen

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"Unwinding" is a common, if not ubiquitous, feature of tax practice. In a successful unwind, parties to a prior transaction or arrangement back out of it by means of a later transaction and are treated for tax purposes as having engaged in no transactions at all. In a failed unwind, the parties undertake the later transaction, but it is not treated as nullifying the effects of the first transaction; rather, two separate transactions are deemed to have taken place, each with its own tax consequences.

This Article develops the first unified theoretical framework for analyzing tax unwinding. It also provides …

The Concept Of "Less Eligibility" And The Social Function Of Prison Violence In Class Society, Ahmed A. White

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No abstract provided.

Common Ground: The Case For Collaboration Between Anti-Poverty Advocates And Public Interest Intellectual Property Advocates, Deborah J. Cantrell

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This article examines the previously unappreciated common ground between scholars and advocates who work to eliminate poverty, and scholars and advocates who work on intellectual property issues in the public interest. The article first illustrates how scholars and advocates working on poverty and on public interest intellectual property have relied on rights talk to frame their social movements. Under the conventional narrative, the framing has accentuated differences between the movements. As the Article explains, the two movements share core principles and should recognize shared interests and goals. By developing a new model of how to view public interest movements, the …

Instead Of Enda, A Course Correction For Title Vii, Jennifer S. Hendricks

Publications

In September 2008, the D.C. federal court issued a landmark decision holding that discrimination against a transgender person was sex discrimination under Title VII. This decision throws into sharp relief the ongoing debates among supporters of the Employment Non-Discrimination Act about whether the compromise on including protection for gender identity claims. Consideration of ENDA in some form will likely be early on the agenda of the next Congress, especially under a Democratic administration likely to support the bill. This essay proposes an alternative to ENDA that would embrace the theoretical connections between sex, gender, and sexual orientation, with important practical …

Extraterritoriality, Antitrust, And The Pragmatist Style, Justin Desautels-Stein

Publications

In the last decades of the 20th century, David Kennedy and Martti Koskenniemi made the case that the modern structure of international legal argument was characterized by "pragmatism." Taking this idea as its baseline, this Article's central argument is that legal pragmatism embodies a dominant style of contemporary legal reasoning, and that as Kennedy and Koskenniemi might have suggested, it is on display in some of the canonical antitrust decisions having an international dimension. The Article also seeks to show that pragmatism's ostensible triumph is best understood as a contest of three distinctly legal pragmatisms: "eclectic pragmatism," as evidenced in …

The Ethics Of Collaborative Law, Scott R. Peppet

Publications

The practice of Collaborative Law - in which both parties agree that should their case fail to settle, both lawyers will be disqualified from proceeding to court - has grown rapidly in the family bar over the last decade. At the same time, the ethics of this practice have been called into question. Competing ethics opinions in 2007 - from the Colorado Bar Association and the American Bar Association - alternately ban and permit the practice. This Article tries to clarify the underlying ethical issues in Collaborative Law, arguing that much confusion has resulted from imprecise understandings of what the …

Dunya, Marianne Wesson

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No abstract provided.

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

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The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.