Law Commons^™

Law And Public Policy Support Lockyer's Suit Against Auto Manufacturers For Co2 Emissions, Clifford Rechtschaffen, Sean B. Hecht

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Controversy has followed Attorney General Bill Lockyer’s decision earlier this fall to sue the six largest automakers, alleging that car emissions constitute a public nuisance because they contribute to global warming. Some even have dismissed the lawsuit as election year grandstanding. To the contrary, the Attorney General should be applauded for creatively using a venerable legal tool to protect California’s environment and to plug a gaping hole left by federal failures in this area.

The Suborned Subescrow, Roger Bernhardt

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This article examines a case involving subescrows, popular in southern California. They are not the same as true escrows, but their role if often blurred.

United States Migration Law: Essentials For Comparison, Christian N. Okeke, James A.R. Nafziger

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The immigration and nationality law of the United States is complex. It is more the product of historical experience than logical design. In one memorable, often-quoted simile, the law bears "a striking resemblance" to "King Minos's labyrinth in ancient Crete." Perhaps only the internal revenue (tax) code and its voluminous regulations are more intricate. Given this complexity, we can only summarize United States migration law. The purpose of this article, as part of a transnational dialogue, is to locate the migration law of the United States within the framework of international migration law and to highlight the essential features of …

Misindexed Documents, Roger Bernhardt

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This article discusses the absurdity of the majority rule holding that misindexed documents nevertheless give constructive notice.

When Neither Party Will Fix The Roof, Roger Bernhardt

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This article discusses the conflict that arises in commercial property where neither tenant nor landlord has a duty to repair: the landlord may not evict and the tenant may not quit. The tenant may ultimately be held responsible for the repair under the duty to avoid waste.

Misindexed Documents, Roger Bernhardt

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No abstract provided.

Liability And Responsibility Of The State Of Registration Or The Flag State In Respect Of Sea-Going Vessels, Aircraft And Spacecraft Registered By National Registration Authorities, Sompong Sucharitkul

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The topic selected for this report forms part of a broader picture: "the Liability of Registration authorities," which embraces a wider scope of enquiry, principally covering an infinite variety of international regulations within comparable national legal orders. Civil liability may require consideration of legal questions for which practical solution may only be found beyond the confines of internal law, in the choice of applicable law as part of private international law, or ultimately in the direct or indirect application of a rule of public international law, as recognized by States and incorporated in negotiated provisions of a Treaty.

Property Lessons In August Wilson's The Piano Lesson And The Wake Of Hurricane Katrina, Rachel A. Van Cleave

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No abstract provided.

Attorneys As Escrow Agents, Roger Bernhardt

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This article details the conflicts of interest that can arise when an attorney representing a buyer also acts as escrow agent for both parties.

The Plight Of The Buyer’S Broker, Roger Bernhardt

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This article examines the commission claims of buyers’ brokers encounter with commissions and the tort for interference with prospective economic advantage.

Uncertain Dangers In Unlawful Detainers, Roger Bernhardt

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This article discusses the nature of unlawful detainer actions in California and the difficulties they create on tenants’ ability to negotiate with landlords over honest disputes..

Risky Recitals, Roger Bernhardt

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This article compares judicial foreclosure to nonjudicial trustee sales and the significance of recitals in the trustee’s deed

The Addiction And The Portfolio: An Introduction To The Issue, Paul Stanton Kibel, Ida Martinac

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No abstract provided.

Making The Broker Pay When The Deal Goes Bad, Roger Bernhardt

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This article discusses a California decision holding the broker liable to a buyer for misrepresenting the ability of the sellers to convey good title.

The Continuing Expansive Pressure To Hold Employers Strictly Liable For Supervisory Sexual Extortion: An Alternative Approach Based On Reasonableness, Heather S. Murr

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This Article offers a normative framework for how the current employer liability standards should be applied to sexual extortion claims. It analyzes the realist-formalist dichotomy in the supervisory sexual extortion context and concludes that the formalist approach is more consistent with the current employer liability standards and related policy considerations. The Article then explains how certain courts have incorrectly applied the second prong of the affirmative defense and inappropriately denied liability by failing to consider the avoidable consequences doctrine and related harm-avoidance principles upon which the second prong is based. The Article concludes by offering a framework for how these …

Will The Environmentalists Find Their Voice?, Clifford Rechtschaffen

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For U.S. environmentalists, 2005 will be remembered harshly, because it marked the clear and undeniable end of U.S. global environmental leadership. For three decades, the United States was the world's environmental trendsetter. But now leadership comes from the European Union,

Belonging: Citizenship And Migration In The European Union And In Germany, Helen E. Hartnell

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This article investigates the evolving notion of belonging through the lens of Germany's new frameworks for nationality/citizenship and migration. Given the quantity of EU activity in the fields under consideration here, European developments are also analyzed, though less for their own sake than for the sake of staking out the parameters within which Germany remains sovereign to act.

Throughout this article, the question of how concrete developments bear on larger questions about belonging will recur. I make two main arguments. First, however welcome Germany's dramatic legal reforms may be, they will not necessarily solve the problems such legislation was intended …

Adverse Possession By Tenants In Common: Preciado V Wilde, 2006, Roger Bernhardt

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This article discusses a California case which held that a tenant in common’s exclusive use of property was insufficient to establish adverse possession or an ouster.

Condo Pet Policies And The Fair Housing Act: Dubois V Association Of Apartment Owners, 2006, Roger Bernhardt

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This article discusses a Ninth Circuit case where plaintiffs unsuccessfully claimed violation of the Fair Housing Act because the homeowners association had never refused to make the requested accommodation.

Equitable Subrogation Award Among Coowners: Kenney V U.S., 2006, Roger Bernhardt

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This article discusses a California case which held calculated an equitable subrogation award following sale of a home by crediting all joint tenant’s mortgage payments against net proceeds before dividing the balance into equal shares.

Identity Theft And Foreclosure Surpluses: Ctc Real Estate Servs. V Lepe, 2006, Roger Bernhardt

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This article discusses a California case which held that an identity theft victim in whose name a mortgage was obtained may recover the undistributed surplus proceeds that remained after its foreclosure sale.

Posting Property And Prescriptive Easements: Aaron V Dunham, 2006, Roger Bernhardt

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This article discusses a California case which court held that posting of permission-to-pass signs by a lessee, who was not landowner’s authorized agent, was ineffective to stop the neighbor’s prescriptive easement claim.

What Happens When The Sky Does Fall In?, Roger Bernhardt

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This article discusses the uncertainty in commercial lease situations where the roof requires complete replacement, and neither party is obliged to do so.

Assigning The Burden Of Proof In Contractual Jury Waiver Challenges: How Valuable Is Your Right To A Jury Trial?, Chester Chuang

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Two state supreme courts, California and Georgia, have ruled that pre-dispute contractual jury waivers are not enforceable. Those jurisdictions that permit such waivers use a wide array of “safeguards not typical of commercial law” to protect the constitutional right to jury trial. The multiple safeguards used by courts, and the different ways of applying them led the California Supreme Court to note “the difficulties experienced in other jurisdictions [with respect to pre-dispute jury waivers], where disagreements persist concerning such matters as allocation of the burden of proof when a party resists enforcement of a contractual waiver of jury trial.” These …

Lawyers And Learning: A Metacognitive Approach To Legal Education, Anthony S. Niedwiecki

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This article will detail the concept of metacognition, how current law school teaching does not teach metacognitive skills, and how legal educators can incorporate metacognitive learning into the law school curriculum to help students better transfer knowledge and skills to the practice of law. Teaching metacognitive skills to law students should focus on explaining learning theory and modeling appropriate planning, monitoring, and evaluating techniques across the curriculum. Part II of this article details how law schools have been slow to integrate and apply learning theory to the law school classroom. Part III details the theory behind metacognition and how it …

Why A Conference On Redevelopment, And Why Now, Colin Crawford

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When the Center for the Comparative Study of Metropolitan Growth proposed the conference that produced the volume of essays you have in your hand, it was our idea to bring together a diverse group of professionals - environmental and land use lawyers, land use planners and city officials, politicians and engineers to discuss the legal and policy issues concerning "redevelopment." That is, we were concerned, living as we do in the rapidly changing and growing metropolitan area of Atlanta, to focus on the frequently exciting but also often tense and controversial area of redeveloping urban and suburban landscapes in ways …

Protecting Environmentally-Sensitive Areas And Promoting Tourism In The Back Patio Of The United States: Thoughts About Shared Responsibilities In Ecosystem And Biodiversity Protection, Colin Crawford

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If the Dominican Republic is really in our back patio, what role, if any, do we bear in keeping it - as part of a property over which we have some dominion - in order? This article seeks to answer that question and, in the process, to provide some answers. In Part II, it will briefly lay out the urgency of strengthening the Dominican system of environmental protection areas, both for that nation and for the region of which it is a part. Part II thus endeavors to outline the importance of protected areas as the fulcrum of a larger …

Say You're Sorry: Court-Ordered Apologies As A Civil Rights Remedy, Brent T. White

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This Article proposes that civil rights plaintiffs pursuing cases against governmental defendants should be entitled to receive court-ordered apologies as an equitable remedy. Part I discusses the importance of apology in American society and concludes that apology is culturally embedded as an essential component of everyday dispute resolution. Part II provides a brief overview of current legal scholarship in the area of apology, including the lack of such scholarship related to court-ordered apologies as a civil remedy. Part III argues that traditional forms of compensation fail to provide adequate relief to civil rights victims because they neglect psychological, emotional, and …