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2003

Publications

Articles 1 - 30 of 69

Full-Text Articles in Law

Advancing Environmental Justice Norms, Clifford Rechtschaffen Nov 2003

Advancing Environmental Justice Norms, Clifford Rechtschaffen

Publications

Part I of this Article provides brief background on the environmental justice movement. Part 11 generally describes some of the challenges that environmental justice principles pose for the traditional environmental decision-making paradigm. Part III presents several specific examples of how environmental justice norms can be incorporated to improve the ethical outcomes of traditional agency decision making.

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The Lessened Lis Pendens, Roger Bernhardt Sep 2003

The Lessened Lis Pendens, Roger Bernhardt

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This article warns attorneys to advise their clients to think twice before recording that lis pendens. Two California cases demonstrate that attempts to obtain a lis pendens may be worse than ineffective, and quite dangerous, leading to liability for attorney fees and compensatory and punitive damages.

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Tips From An Appellate Lawyer, Myron Moskovitz Sep 2003

Tips From An Appellate Lawyer, Myron Moskovitz

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No abstract provided.

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Balancing The Automatic Stay, Roger Bernhardt, James Stillman Jul 2003

Balancing The Automatic Stay, Roger Bernhardt, James Stillman

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This article discusses a Ninth Circuit Bankruptcy Appellate Panel decision holding that purchasers at a trustee sale can successfully have the stay that originally prohibited the sale annulled if the court finds that the equities are in their favor.

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Failing Grade: Our Irrelevant Bar Exam, Roger Bernhardt Jul 2003

Failing Grade: Our Irrelevant Bar Exam, Roger Bernhardt

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This article criticizes the California Bar Exam’s testing of real property. The author argues that the Exam fails to test modern issues relevant to everyday practice.

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Making Sense Out Of Insurance, Condemnation, And Settlement Clauses In Deeds Of Trust, Roger Bernhardt May 2003

Making Sense Out Of Insurance, Condemnation, And Settlement Clauses In Deeds Of Trust, Roger Bernhardt

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This article discusses a California case that held that moneys received by trustors in settlement of their damage claims against a contractor need not be turned over to their lender pursuant to their deed of trust, but concludes that other court are not likely to agree with the holding that “owed” means “amounts currently due and payable” instead of principal balance, and that lenders will probably revise their forms to escape that reasoning..

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Nature Of The Beast: An Introduction To The Issue, Paul Stanton Kibel Apr 2003

Nature Of The Beast: An Introduction To The Issue, Paul Stanton Kibel

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No abstract provided.

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The Disturbed Subtenant Roger Bernhardt, Roger Bernhardt Mar 2003

The Disturbed Subtenant Roger Bernhardt, Roger Bernhardt

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This article discusses the advantages of a nondistrubance and attornment provision in a lease. An NDA clause benefits the both the subtenant and landlord and may help a tenant attract subtenants. It gives security to subtenants that if the tenant declares bankruptcy the subleases will remain intact. The landlord benefits because it eliminates the need to find new tenants.

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Help For Youths Leaving Foster Care, Michele Benedetto Neitz Feb 2003

Help For Youths Leaving Foster Care, Michele Benedetto Neitz

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No abstract provided.

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"Death Is Different" - Is Money Different? Criminal Punishments, Forfeitures, And Punitive Damages - Shifting Constitutional Paradigms For Assessing Proportionality, Rachel A. Van Cleave Jan 2003

"Death Is Different" - Is Money Different? Criminal Punishments, Forfeitures, And Punitive Damages - Shifting Constitutional Paradigms For Assessing Proportionality, Rachel A. Van Cleave

Publications

Part I of this Article reviews the case law regarding judicial review of both terms of imprisonment and imposition of the death penalty. In this section, I argue for consistency within this area of the law. Some jurisprudence suggests that, because "death is different," proportionality review is appropriate only in the death penalty context, and is either not required or only applies in an extremely narrow example, such as life imprisonment for a parking ticket. Part II examines Supreme Court precedent that analyzes the question of proportionality of forfeitures and punitive damages awards. In the context of forfeitures, the debate …

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A Return To Lilliput: The Licra V. Yahoo! Case And The Regulation Of Online Content In The World Market, Marc Greenberg Jan 2003

A Return To Lilliput: The Licra V. Yahoo! Case And The Regulation Of Online Content In The World Market, Marc Greenberg

Publications

The first section of this Article presents the laws governing Internet content providers and the jurisdictional regime that gave rise to this see saw battle. The second section examines a series of court proceedings. The first two proceedings in France in 2000 resulted in a French court order directing Yahoo to add geo-location filtering software to its servers in Santa Clara. The subsequent California district court litigation filed in 2001 resulted in summary judgment for Yahoo. This judgment is on appeal. The third and final section explores the global implications of the French and U.S. proceedings. The section concludes that …

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Love Your Husband – But Don’T Lend Him Money, Roger Bernhardt Jan 2003

Love Your Husband – But Don’T Lend Him Money, Roger Bernhardt

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This article discusses a California case where the husband’s note to his wife was held invalid for undue influence, and questions what unfair advantage means, its consequences, and how it can be rebutted.

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Redeeming From Tax Sales: Bevan V Socal Communications Sites, 2003, Roger Bernhardt Jan 2003

Redeeming From Tax Sales: Bevan V Socal Communications Sites, 2003, Roger Bernhardt

Publications

This article discusses a Ninth Circuit case which held that when a lienor forecloses on a debtor’s property that which is also subject to an IRS lien, the lienor will not be equitably subrogated to the IRS claim where it eliminates the IRS’s right of redemption by paying the IRS the amount owed by the debtor to it.

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Improving State Environmental Enforcement Performance Through Enhanced Government Accountability And Other Strategies, Clifford Rechtschaffen, David L. Markell Jan 2003

Improving State Environmental Enforcement Performance Through Enhanced Government Accountability And Other Strategies, Clifford Rechtschaffen, David L. Markell

Publications

This Article discusses a number of options for EPA to strengthen state performance and bring it more in line with EPA's expectations. First, EPA must play a stricter gate-keeping function in initially authorizing state programs, and more regularly reassess and report the adequacy of state enforcement authorities and state capacity. Second, EPA must stop delivering a mixed message to the states about the enforcement practices it expects the states to follow. Instead, it must establish clear expectations for performance. Third, in terms of the substance of those expectations, EPA should revise its criteria for evaluating whether state enforcement programs work. …

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Necessity Makes The Frog Jump: Land-Use Planning And Urban Agriculture In Cuba, Colin Crawford Jan 2003

Necessity Makes The Frog Jump: Land-Use Planning And Urban Agriculture In Cuba, Colin Crawford

Publications

This Article addresses the land-use planning implications of Cuban urban organic agriculture. Part II begins by briefly placing the Cuban urban agricultural experience in an international context, noting that many of the successes, and potential threats to, Cuban urban agriculture share features similar to efforts in other countries both more and less developed than Cuba. In light of this context, Part II will then evaluate the implications of urban agriculture for Cuban land-use planning. To this end, Part II will identify the advantages of urban agriculture for urban living. In addition, Part II will also describe the Cuban effort to …

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My Father Is A Woman, Oh No!: The Failure Of The Courts To Uphold Individual Substantive Due Process Rights For Transgender Parents Under The Guise Of The Best Interests Of The Child, Helen Chang Jan 2003

My Father Is A Woman, Oh No!: The Failure Of The Courts To Uphold Individual Substantive Due Process Rights For Transgender Parents Under The Guise Of The Best Interests Of The Child, Helen Chang

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Under the guise of the "best interest of the child," courts have denied biological and legal parents both custody and visitation rights over their children because these parents were either in the process of changing, or had completed a change, in their sexual and/or gender identity. One court has even terminated the parent-child relationship because of a parent's transgender status. This article proposes that a parent's transgender status does not render that parent per se unfit for custody and/or visitation. Rather, a parent's gender change should be used as merely one factor within the nexus test used by the court …

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An Uneasy Peace: Multilateral Military Intervention In Civil Wars, Eleanor Lumsden Jan 2003

An Uneasy Peace: Multilateral Military Intervention In Civil Wars, Eleanor Lumsden

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This article will examine seven instances in which a group of states or regional organizations have intervened with military force in an ongoing civil war either because their interests were directly threatened or in order to avert grave humanitarian consequences. Parts I and II will define and explore the various permutations of multilateral and regional intervention. Part III will summarize the legal justifications advanced in favor of or against multilateral military intervention. Part IV will examine, through the use of country case studies, interventions where states either deviated from or ignored completely Article 2(4)'s prohibition against the use of force …

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Les Criteres De L'Acte Jure Imperii Dans La Pratique Contemporaine, Sompong Sucharitkul Jan 2003

Les Criteres De L'Acte Jure Imperii Dans La Pratique Contemporaine, Sompong Sucharitkul

Publications

Mémoire de DEA en droit international public Dirigé par M. le Professeur JOE VERHOEVEN.

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When Is A Court "Punishing" Out-Of-State Conduct Rather Than Merely "Considering" Such Conduct?, Rachel A. Van Cleave Jan 2003

When Is A Court "Punishing" Out-Of-State Conduct Rather Than Merely "Considering" Such Conduct?, Rachel A. Van Cleave

Publications

No abstract provided.

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Aligning Or Maligning? Getting Inside A New Idea, Getting Behind No Child Left Behind And Getting Outside Of It All, Stephen A. Rosenbaum Jan 2003

Aligning Or Maligning? Getting Inside A New Idea, Getting Behind No Child Left Behind And Getting Outside Of It All, Stephen A. Rosenbaum

Publications

In this article, I briefly review the background for the latest iteration of federal special education policy, the reauthorization of the Individuals with Disabilities Education (Improvement) Act or IDEA. With a slight apology to ardent advocates for parents and children with disabilities, I then suggest ways that they and their clients can set aside their concerns about a diluted statute and learn to live with a changed legal landscape — and perhaps even flourish in an educational system that aims to raise the standards for all students. With each cycle of program review, policy revisitation and legislative revision, those who …

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Cyberplace: Defining A Right To Internet Access Through Public Accommodation Law, Colin Crawford Jan 2003

Cyberplace: Defining A Right To Internet Access Through Public Accommodation Law, Colin Crawford

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Following the introduction, Part II makes the case that public accommodation law is an appropriate legal vehicle to establish a right of Internet access. Part III begins with a brief review of the current state of public accommodation law followed by a consideration, in light of that review, of some of the possible limitations of public accommodation principles for regulating the Internet. I will then identify which aspects of the Internet should be classified as places of public accommodation. In this connection, I will examine debates about the nature and scope of public accommodation principles as they apply to persons …

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Late Payment Penalties In Leases: Harbor Island Holdings V Kim, 2003, Roger Bernhardt Jan 2003

Late Payment Penalties In Leases: Harbor Island Holdings V Kim, 2003, Roger Bernhardt

Publications

This article discusses a California case which held a provision of a commercial lease doubling rent in the event of breach by the tenant was an unenforceable penalty.

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Measure Of Liability For Broker Misrepresentation: Fragale V Faulkner, 2003, Roger Bernhardt Jan 2003

Measure Of Liability For Broker Misrepresentation: Fragale V Faulkner, 2003, Roger Bernhardt

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This article discusses a California case which held that the measure of damages for a broker’s intentional misrepresentation to principal agent is not limited to the buyer’s out-of-pocket losses but may be measured by the benefit-of-the bargain rule.

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Rent Control: Santa Monica Rent Control Bd. V Pearl Street, Llc, 2003, Roger Bernhardt Jan 2003

Rent Control: Santa Monica Rent Control Bd. V Pearl Street, Llc, 2003, Roger Bernhardt

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This article discusses a California case which held that a rent control board’s suit alleging that a landlord was not entitled to charge market rate rents was not a SLAPP suit because it was based on the alleged charging of unlawful rent, not the landlord’s act of filing documents with the board.

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Retaliatory Withdrawals From Rental Housing Market: Drouet V Superior Court, 2003, Roger Bernhardt Jan 2003

Retaliatory Withdrawals From Rental Housing Market: Drouet V Superior Court, 2003, Roger Bernhardt

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This article discusses a California case which held that in an unlawful detainer action, a landlord’s bona fide intent to withdraw the property from the rental market defeats the tenant’s claim of retaliatory eviction.

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Seller’S Withdrawal For Buyer’S Late Performance: Ninety Nine Invs. V Overseas Courier Serv., 2003, Roger Bernhardt Jan 2003

Seller’S Withdrawal For Buyer’S Late Performance: Ninety Nine Invs. V Overseas Courier Serv., 2003, Roger Bernhardt

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This article discusses a California case which held that a buyer was entitled to specific performance when the seller’s failure to comply with escrow instructions prevented the buyer’s timely performance of the financing condition.

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The Undue Influence Presumption Vs The Record Title Presumption: Marriage Of Delaney, 2003, Roger Bernhardt Jan 2003

The Undue Influence Presumption Vs The Record Title Presumption: Marriage Of Delaney, 2003, Roger Bernhardt

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This article discusses a California case which held that when an interspousal transaction is to one spouse’s advantage, the Family Code presumption that the transaction was a result of undue influence is trumped by the Evidence Code’s presumption of record title.

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Interloper In The Fields Of Academe, Peter Keane Jan 2003

Interloper In The Fields Of Academe, Peter Keane

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First-time experiences of a non-traditional dean.

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Broker Buying And Then Reselling: Roberts V Lomanto, 2003, Roger Bernhardt Jan 2003

Broker Buying And Then Reselling: Roberts V Lomanto, 2003, Roger Bernhardt

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This article discusses a California case which held that a seller’s real estate agent breached her fiduciary duty when she contracted to purchase the property, assigned the contract to a third party buyer, and refused to disclose to the seller the amount of the assignment fee or third party buyer’s purchase price.

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Conflict Of Interest From Preparing Note Used By Client: Hetos Invs., Ltd. V Kurtin, 2003, Roger Bernhardt Jan 2003

Conflict Of Interest From Preparing Note Used By Client: Hetos Invs., Ltd. V Kurtin, 2003, Roger Bernhardt

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This article discusses a California case which held that a law firm not barred from representing its client in a lawsuit contending that a promissory note it prepared on the client’s behalf was usurious under California law.

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