Law Commons^™

Inequitable Noncontribution, Roger Bernhardt

Publications

This article discusses a California case rejecting a guarantor’s claim of equitable contribution from co-guarantors because they were not at the same level of liability, and also rejecting a subrogation claim because it could be used only against the primary debtor, not other secondary debtors.

E-Commenting: Pros And Cons, Leslie Rose

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No abstract provided.

Attorneys Fees, Offsets And Priorities, Roger Bernhardt

Publications

This article discusses the unpredictability of determining whether the rules of offset or the rules of priorities will prevail in a situation, and goes into the question of whether attorneys’ fees will be given priority over other claims when those fees are contractual and do not relate back. The article concerns a California decision which held that a lis pendens did not give purchasers superpriority over competing liens.

Landlords And Torts, Roger Bernhardt

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This article reviews conflicting appellate court decisions where landlords were sued in tort under state statutes that all imposed the same general duty to take care of the property but failed to address what happens when personal injuries follow.

Ill-Suited To Retail, Myron Moskovitz

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No abstract provided.

Reflections On The Last Bar Exam; New Forms Worth Noting (2007), Roger Bernhardt

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The Bar Examiners got rather lazy in their Property question on the last bar exam. Instead of asking a reasonably complex or difficult essay question, they took four little multiple choice hypotheticals and packaged them into one large but utterly unintegrated question, with no connection of any kind between the parts.

Roots Of The Grassroots: An Introduction To The Issue, Paul Stanton Kibel, Edward J. Lubarsky

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No abstract provided.

Attorney Fees And Lien Priorities, Roger Bernhardt

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This article examines a California decision that held that the attorneys fees of a successful purchaser in a specific performance action are subordinate to any liens the seller imposed on the property during the litigation.

The Exeat Of A Remarkable Man From The Academia: Distinguished Professor Dr. Sompong Sucharitkul: Statesman, Diplomat And Notable Scholar, Christian N. Okeke

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No abstract provided.

Staying In Front, Roger Bernhardt

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This article examines option to purchase agreements and when the doctrine of relation back applies, with a warning as to the effect of altering the terms of an existing deal.

Tax Evasion Confusion In The Ninth Circuit, Kimberly Stanley

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It is well settled that the crime of tax evasion under IRC §7201 has three fundamental elements. The statute requires the government to prove (1) the existence of a tax deficiency, (2) willfulness in the attempted evasion of taxes, and (3) an affirmative act constituting an evasion or attempted evasion. However, two recent Ninth Circuit tax evasion cases have muddied the waters – resulting in opposite outcomes – and have tax practitioners questioning the court’s reasoning.

Dubai Ports World Under Exon-Florio: A Threat To National Security Or A Tempest In A Seaport?, Deborah M. Mostaghel

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This Article discusses foreign investment in the United States as background for understanding passage of Exon-Florio in 1988. Part III discusses how Exon-Florio works. Part IV discuses two transactions that prompted calls for revision of Exon-Florio, culminating in the passage of the Byrd Amendment (Byrd). Part V discusses the passing of Byrd in 1993. Byrd's changes remain in effect today. Part VI discusses economic and political concerns as they affect transactions subject to Exon-Florio review. Part VII examines the implications of the CNOOC and DP World transactions. Part VIII concludes that CFIUS review need not be changed. CFIUS must follow …

Adjudicating Non-Justiciable Rights: Socio-Economic Rights And The South African Constitutional Court, Eric C. Christiansen

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This paper begins with an examination of social rights in the South African constitutional drafting process. Following a review of the traditional arguments against the justiciability of socio-economic rights, it then examines the South African Constitutional Court cases addressing social rights, focusing on four primary cases: the antecedent case Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 and three substantive social rights cases, Thiagraj Soobramoney v Minister of Health, KwaZulu-Natal, Government of Republic of South Africa v Irene Grootboom and Others, and Minister of Health v Treatment Action …

Contribution Of The Asian-African Legal Consultative Organization To The Codification And Progressive Development Of International Law, Sompong Sucharitkul

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It is with a sense of delightful nostalgia that the present writer begins to gather his personal recollections of his past association with the Asian-African Legal Consultative Organization (AALCO), an original inter-regional organization, concerned with international legal developments for the AsianAfrican Regions, especially at this juncture as the Regional Organization is preparing to publish a commemorative volume containing essays in international law. The publication is indeed to be welcome. His pleasant recollections of the activities of the inter-regional organization are still so vivid in his fondest memory that a memorable record may be kept and preserved for the benefit of …

Calculating Exemptions In Bankruptcy: All Points Capital Corp. V Meyer, Roger Bernhardt

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This article discusses a bankruptcy case involving 11USC §522(f)’s formula for avoiding judgment liens on properties in which the debtor holds only a partial interest.

Creditor’S Inability To Set Aside A Judicial Foreclosure Sale Despite Gross Underbidding: Amalgamated Bank V Superior Court (2007), Roger Bernhardt

Publications

This article discusses a California case where the creditor - who had showed up one minute at its foreclosure sale - was thereafter unable to have it set aside or preserve its lis pendens although the property was sold for $2,000 rather than the $6 million it was worth to a friend of the debtor.

Foreclosure Trustees And Fiduciary Duties Heritage Oaks Partners V First Am. Title Ins. Co. (2007), Roger Bernhardt

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This article discusses a California case holding that the trustee under a deed of trust merely acts as a common agent for the parties and owes no fiduciary obligation to third parties. Later purchasers are expected to discover the trustee’s lack of authority to sell from their own search of the records.

Indexing The Lis Pendens: Dyer V Martinez, 2007, Roger Bernhardt

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This article discusses a California case which held that filing of lis pendens with the county recorder does not impart constructive notice until it has been indexed..

Statutory Equitable Subrogation, Roger Bernhardt

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This article discusses a Wyoming Supreme Court case which refused to accept the Restatement’s position that equitable subrogation ought to be available to refinancers even though they know or have constructive notice of intervening other creditors.

The Fallen Angel, Roger Bernhardt

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This article discusses a case where the buyer was defrauded by a real estate broker into purchasing property he could not afford.

The Statute Of Frauds, Roger Bernhardt

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This article discusses the California Supreme Court case Sterling v. Taylor which held that extrinsic evidence may be admitted to support a claim that the Statute of Frauds has been met. When a writing is not sufficient, the attorney must not only decide whether there is sufficient supporting evidence to get past the Statute of Frauds, but also whether that evidence is sufficiently consistent with the writing.

Évolution D'Une Notion Nouvelle Le Patrimoine Commun De L'Humanite, Sompong Sucharitkul

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No abstract provided.

Grasp On Water: A Natural Resource That Eludes Nafta's Notion Of Investment, Paul S. Kibel

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This Article begins by outlining the hydrologic and legal restraints to private ownership of water resources. It then details the provisions of NAFTA that pertain to private rights in water, and reports on two highprofile water entitlement cases that have arisen under NAFTA's foreign investor protection regime. The piece concludes by observing that the experience of United States of America (U.S.) federal courts with state water law may provide a jurisprudential template to bring NAFTA into alignment with existing domestic water law and international water treaties.

Rio Grande Designs: Texans' Nafta Water Claim Against Mexico, Paul S. Kibel, Jonathan R. Schultz

Publications

Our article begins with an analysis of the historical context and key provisions in the 1944 Rivers Treaty between Mexico and the United States. Next, we explain the expropriation claims process established by NAFTA's Chapter 11 and describe the environmental controversy that has arisen over its implementation. We follow with an account of the Texans' NAFTA water claim against Mexico, including an analysis of this claim's relation to the Tulare Lake decision and parallel dispute resolution proceedings at the International and Boundary Waters Commission.

At the end of this review, our finding is that the Texans' NAFTA water claim against …

Representing David: When Best Practices Aren't And Natural Supports Really Are, Stephen A. Rosenbaum

Publications

As California marks the 30-year anniversary of the Lanterman Developmental Disabilities Services Act, there is more legal support and social acceptance than ever for including individuals with developmental disabilities in our daily lives — i.e., in community-based settings. Yet, the day-to-day decisions are not necessarily easier. Informed parents and professional advocates are meant to digest the latest literature, absorb the best practices, fight the fights, rise above the loneliness, and travel the correct path in search for services and support. In this article, I highlight the peculiar difficulties posed for professionals who advocate on behalf of children with disabilities, using …

The New Federal Anti-Dilution Act: Reinstating The Myth Of Likely Dilutive Harm As A Mask Anti-Free-Rider Liability, David Franklyn

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The new federal anti-dilution act, the Trademark Dilution Revision Act of 2006 (the "TDRA"), promises to restore an anti-freerider tool to the hands of judges who wish to grant expansive trademark rights to famous mark owners. The impulse to provide this kind of relief is grounded in a sound principle: between the entity that created the famous mark and others who wish to profit from it in foreseeable collateral markets, the mark creator is usually the party that has a superior claim to capture that collateral value and to ensure the value of the mark for future exploitation in a …

Reality, Theory, And A Make-Believe World: The Fundamentalism Of The Free Market, Colin Crawford, Daniel Bonilla Maldonado, Carmen G. Gonzalez

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The papers collected in this Symposium issue represent a wide range of disciplines, positions and philosophies, and reflect the views of scholars from five countries (Argentina, Brazil, Colombia, the United States and Venezuela).

These papers reflect a range of thinking about the "freedom" that the free market is said to bring, from deeply analytical reflections to more focused case studies. In this, they reflect an equally rich series of panels and discussions that happened over three days spent in Bogota, in May 2006. These conversations, held in the comfortable surroundings of the tranquil campus of the Universidad de los Andes, …

The Insistent (And Unrelenting) Challenges Of Protecting Biodiversity In Brazil: Finding The Law That Sticks, Colin Crawford, Guilherme Pignataro

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Following the introduction, Part I of this article will outline threats to biodiversity within Brazil's borders. Because this is a topic that has already been explored extensively, this article makes no attempt to cover that ground exhaustively. Instead, Part I will attempt to highlight the variety and extent of Brazilian ecosystems and the biodiversity within them. Part I will also discuss current and emerging threats to biodiversity in Brazil, and above all, threats that have become even more real since the United Nation's celebrated "Earth Summit," held in Rio de Janeiro in 1992. In particular, Part I will focus on …

Reason Or Madness: A Defense Of Copyright's Growing Pains, Marc H. Greenberg

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A growing conflict between the creators and owners of expressive works protected by copyright law and the community of users and distributors of those works has focused on whether the law is so restrictive that it no longer meets the constitutional mandate that intellectual property law should serve to promote the growth and development of useful and expressive works. Has the scope of copyright's growth been reasonable, or are its restrictions madness, and harmful to the development and distribution of art? This article explores the seven leading criticisms leveled against copyright's expansion, and examines one recent effort at legislative reform …

Rape And The Querela In Italy: False Protection Of Victim Agency, Rachel A. Van Cleave

Publications

Italian law requires rape victims to make a formal request that the state prosecute the alleged rapist. This request is called a querela and without such a request prosecution does not proceed, though there are some exceptions. In addition, the request for prosecution is irrevocable; the victim cannot withdraw her request for prosecution. Italian law has included the querela requirement for over one hundred years. It was included in the Zanardelli Code of 1889,3 the first Penal Code of unified Italy, maintained in the Rocco Code of 1930, the Penal Code of Fascist Italy, and-after a great deal of controversy-the …