Saturday, October 25, 2008

Evictions from State-Owned Land in Hawaii

The Honolulu Advertiser brings news of evictions of residents from state land on the north shore of Oahu.  We hear another lesson in what we might call legal realism:

Each family is being evicted for various reasons, said Ervin Kahala, who was told in 2000 that he would get a lease, but earlier this year learned that a new interpretation of the law forbids the state from issuing new leases even though he grew up in the valley and has ancestral ties to it.

"I'm not prejudiced but (the state) is using white man's law as an excuse," Kahala said.

Alfred Brophy

October 25, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, October 24, 2008

Roark on Fixtures Under Article 9

Marc Lane Roark (University of Missouri School of Law) has posted 'Groping Along...Between Things Real and Things Personal' A New Hermeneutic of Fixtures under UCC 9-334 on SSRN.  Here's the abstract:

What are the defining characteristics of fixtures under the Uniform Commercial Code? Since the Code's inception, courts have interpreted the fixtures definition as incorporating state law on fixtures. Even after drafters revised the definition away from an explicit incorporation of state realty law, courts continued to interpret the provision as if no change were made. This Article argues that the doctrinal development of fixtures, the drafting attempts to define fixtures provisions, and the current version of 9-334 articulate a definition of fixtures tied to attachment. In reaching that conclusion, the Article proposes a "new hermeneutical reading of 9-334 focusing on (1) the doctrinal movement of fixtures to third-party interests; (2) the inference of meaning found in changes to the fixtures provisions; (3) the lack of discernable intent by the drafters either from the comments or other materials; and (4) a reading of 9-334 that concludes meaning from the provisions, rather than one that redacts meaning depending on the definitional base.

Bonus points for Marc for using "hermeneutic" and "Article  9" in the same sentence. 

Ben Barros

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October 24, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Nave on Housing Remedies in School Segregation Litigation

Erin C. Nave (Washington University, St. Louis) has posted Getting to the Roots of School Segregation: The Challenges of Housing Remedies in Northern School Desegregation Litigation on SSRN.  Here's the abstract:

The critical relationship between racially identifiable neighborhoods in northern cities and school segregation has been recognized by scholars, lawyers and courts for decades. However, despite this close interrelationship, civil rights attorneys have been frustrated in attempts to gain the courts' approval of combined school and housing remedies. This essay seeks to illustrate the challenges of winning housing remedies in northern school desegregation cases: (1) proving causation in combined school and housing claims is difficult and requires more resources than most plaintiffs are willing or able to expend; and (2) the Justice Department remains either unable or unwilling to tackle both issues at once. Despite these obstacles, evidence of residential segregation has still historically played a significant strategic role. This essay highlights the Indianapolis Public Schools litigation, U.S. v. Board of School Commissioners of the City of Indianapolis, as an example of how litigators were able to gain an interdistrict school desegregation plan which included a significant, though limited, housing remedy. As the isolation and re-segregation of urban school districts in northern cities continues, it is essential that the Justice Department and civil rights organizations re-examine the critical relationship between housing and schools. This article is also available at the Civil Rights Litigation Clearinghouse.

Ben Barros

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October 24, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Chen on The New Chinese Property Code

Lei Chen (Stellenbosch University) has posted The New Chinese Property Code: A Giant Step Forward? on SSRN.  Here's the abstract:

This article examines the significance of the new Chinese Property Code from a comparative perspective. The new code aims to tackle intractable disputes that its outdated property law regime faces by elevating private property rights and providing a clear demarcation of property rights. This article first presents the social and legislative background of recent developments in Chinese property law, explaining why the enactment of the Property Code is urgently needed. Subsequently, the article analyses the selected primary principles and main elements of property law such as ownership, rights of use and enjoyment, and rights of security. The comparative approach - utilising systems of property rights in other jurisdictions - is used to evaluate property regimes. The conclusion is that, ultimately, the life of the law lies in its application. Although it is widely acknowledged that the new Chinese Property Code is of milestone significance in Chinese legal development, the success of nascent legislation will rely on the state's approach to enforcement. A number of special statutes pertaining to specific institutions are therefore needed to rectify the problems the code does not deal with and to substantiate Chinese property law.

Ben Barros

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October 24, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2008

Zoning Law v. The Bubble

From the AP:

Ten hours a day, every day, Elizabeth Feudale-Bowes confines herself to a galvanized-steel-and-porcelain shed outside her house. Inside are a toilet, a metal cabinet, a box spring with the metal coils exposed, and a pile of organic cotton blankets. Aluminum foil covers the window. The place is as austere as a prison cell - but it's also her sanctuary from an outside world that she says makes her violently ill.

She and her husband call the structure "the bubble."

This bubble, though, may be about to burst: A judge has ordered it taken down by the end of the month.

Some of the couple's neighbors in suburban South Whitehall Township complained that the 160-square-foot building is unstable and so unsightly it could drag down their property values. The couple also hooked up electrical, water and sewer service without securing permits.

"For the wife's medical problems, there is sympathy. For the owner's defiance of the township's lawful directives, there is no excuse," Judge Carol McGinley ruled earlier this month.

Ben Barros

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October 22, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)

Monday, October 20, 2008

Money and Politics in Zoning -- Who Would Have Thought?

The Chicago Tribune has a remarkable series of stories based on an investigation into Chicago zoning practices.  From their summary:

In an unprecedented investigation, the Tribune analyzed a decade of zoning changes to detail how real estate interests have funneled millions of dollars to the aldermen who dictate what can be built. The series has examined how aldermen ignore city planners and frustrated residents as they frequently permit new and bigger buildings that leave neighbors in their shadows.

Ben Barros

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October 20, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)