1 Rose, Carol, “Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory,” 2 Yale J. L. & Humanities 37 (1990).Google Scholar

2 Id at 53.Google Scholar

3 Id at 53, 55. See also Carol Rose, M., “The Comedy of Commons: Custom, Commerce, and Inherently Public Property,” 53 U. Chi. L. Rev. 711 (1985).Google Scholar

4 Hawaii Housing and Finance Development Corp., “A Guide to Hawaii's Residential Leasehold” (Honolulu: Housing Finance & Development Corp., n.d.).Google Scholar

5 Steve Gilbert, “Hawaii Leasehold System Is Very Complex and Very Technical,”Honolulu Star-Bulletin, 22 Oct. 1989, p. H–2.Google Scholar

6 Locations, Inc., “Study of the Resale of Leasehold Properties to Converted Fee Simple Ownership under the Hawaii Land Reform Act of 1967” (Honolulu: Locations, Inc., 1992) (“Locations, Inc., ‘Study’”).Google Scholar

7 Under the act lessees living in single-family residential lots within tracts of at least five acres in size are entitled to ask the Hawaii Housing Authority to condemn the property on which they live. If in a public hearing HHA determined that the public purposes of the act will be served by condemnation, then the agency directs the parties to negotiate a sale price. If negotiations fail, then parties must submit to compulsory arbitration.Google Scholar

8 Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).Google Scholar

9 Locations, Inc., “Study”.Google Scholar

10 Legislacive Reference Bureau of Hawaii, “Ownership Patterns of Land Beneath Hawaii's Condominiums and Cooperative Housing Projects” (Honolulu: Legislative Reference Bureau, 1987).Google Scholar

11 Throughout I use the following terms interchangeably: lessor and landowner; lessee, condominium owner, condominium dweller, and leaseholder. The lease issue applies also to people who live in cooperative apartments, but I refer only to condominiums because in the entire state there are only 29 leasehold coops involving a total of 400 people. See id. at 19–30.Google Scholar

12 Jerry Tune, “Most Condo Owners Want to Buy Land,”Honolulu Advertiser, 18 Jan. 1987, p. B–1.Google Scholar

13 Tony Honoré, Making Law Bind 161–90 (Oxford: Oxford University Press, 1987).Google Scholar

14 Cooter, Compare Robert D., Inventing Market Property: The Land Courts of Papua New Guinea, 25 Law & Soc'y Rev. 759 (1991).Google Scholar

15 Constance Perin, Everything in Its Place: Social Order and Land Use in America (Princeton, N.J.: Princeton University Press, 1977) (“Perin, Everything in Its Place”).Google Scholar

16 I am a condominium townhouse owner who lives on land leased from the Bishop Estate, the largest lessor in the state. Many activists in the anti-leasehold movement come from my neighborhood and from my townhouse complex. I have not been directly involved in these activities, but I have contributed money and I signed one of the petitions included in the testimony to be discussed below.Google Scholar

17 It is not likely that the ethnic and racial distribution of those supporting the bill reflect the population of condo owners as a whole. According to a survey, Chinese and haole (the term typically used in Hawai'i to describe Caucasians) are overrepresented compared to the rest of the population, while Hawaiians and Filipinos are very much under-represented; see Tune, Honolulu Advertiser. My very rough tally, made by using the surname in the testimony as an indicator of ethnicity—a method that is even more unreliable in Hawai'i than elsewhere because of the large degree of intermarriage—indicates that haoles are overrepresented among people giving testimony, while the Chinese are under-represented. Indeed, as I will argue later, those who testified in favor of the bill were overwhelmingly haole. Almost 90% had names that were not Asian, Hawaii'an, or other Pacific Islander, while almost two-thirds of the landowners had Asian or Hawai'ian names. My educated guess is that a greater percentage of the landowners with non-Asian names come from ethnically mixed families than is the case of their counterparts who supported the bill.Google Scholar

18 The numbers in brackets designate the testimony's file number in my file. Since the materials are public documents, I use the true names of the participants.Google Scholar

19 Fred Myers, “Burning the Truck and Holding the Country: Pintupi Forms of Property and Identity,” in Edwin Wilmsen, We Are Here 15 (Berkeley: University of California Press, 1987) (“Myers, ‘Burning the Truck’”).Google Scholar

20 This was a most surprising finding. I expected that haoles would typically tell these stories. According to Elvi Whittaker, The Mainland Haole: the White Experience in Hawaii (New York: Columbia University Press, 1986), haoles who have moved to Hawai'i from the mainland commonly make sense of their present lives by discussing the historical route that brought them to that place. These stories, which are somewhat like the lessors' family stories, do not appear. Relying on Whittaker, I had originally intended either to focus on these haole arrival stories or to compare them to the landowners' statements. The question of why these stories do not appear is an important one because of Whittaker's contention that they offer a key into understanding haole culture, a subject that needs much inquiry. I can think of two reasons why the testimony lacks such stories. First, Whittaker encouraged people to tell these stories. She asked them to describe themselves in these terms. It may have made a difference if I had interviewed the reformers and asked them to discuss why they moved to Hawai'i. One such story does appear in an interview for a documentary made about the leasehold controversy (Mark Delorme, transcript of audio from “Condominiums: The Politics of Leasehold,” at 22–26 (n.d.); video available at University of Hawaii Sinclair Library, 1991) (“Delorme, ‘Condominiums’”), although most of that story does not appear in the documentary itself. It should be noted that the husband and wife telling that story were both born in Hawai'i and had strong family ties here. Second, property and home owning are not discussed in Whittaker's study, and property may raise another set of responses. The only full lessee family story in my study matches Whittaker's haoles. The storyteller tells why he moved here, where he, his wife, and their two children settled, and how they chose the neighborhood where they bought the townhouse where they still live. He then goes on to describe why he stayed, how his children progressed from elementary school through the public schools, Honolulu Community College, and the University of Hawaii. “In short we became full fledged citizens of Hawaii with all the rights and privileges thereof” [169].Google Scholar

21 No churches or social organizations testified in behalf of the lessees, while two churches and the Odd Fellows testified against the bill. See, for example, [218].Google Scholar

22 Perin, Everything in Its Place. See also Sally Merry's discussion of settled and unsettled people in Getting Justice and Getting Even 60–61 (Chicago: University of Chicago Press, 1990) (“Merry, Getting Justice”).Google Scholar

23 From a formal legal standpoint, it is not possible to have owned land in Hawai'i for 200 years because land was not available for private ownership, nor was it commodified until well past the mid-19th century. The family that claimed 200 years of ownership has probably occupied the land for that amount of time, purchasing or getting title to it about 100 years ago.Google Scholar

24 While the small lessors do not attack the Bishop Estate the way the lessors (who see it as the ultimate villain) do, these lessors make no attempt to identify their status with Bishop's.Google Scholar

25 Delorme, “Condominiums”.Google Scholar

26 Rose, , 2 Yale J. L. & Humanities 37 (cite in note 1).Google Scholar

27 In pre-contact Hawai'i an ahupua'a was a pie-shaped piece of land that extended from the mountains to the sea, thus enabling the user of the land (it was not owned) to have access to a wide range of natural resources. The Great Mahele, the 19-century land reform legislation, which was modeled after Western ideas of property law, effectively destroyed native Hawai'ian land-use systems, including the ahupua'a, by commodifying land. The family referred to in the testimony was probably one of the minority of native Hawai'ians who had purchased the land they occupied prior to the Mahele.Google Scholar

28 A part-Hawai'ian landowner who lives on land inherited from his grandfather talked about the taro patches and poi mill that used to be on the land where he lives today. The ties to the past are very visible even though the land is no longer farmed: “The original poi mill was not completely destroyed—our office was built where the poi mill once stood. I live in my great grand mother's original home in the Manoa Valley” [320].Google Scholar

29 John Brigham, The Politics of Entitlement 163 (Philadelphia: Temple University Press, 1991).Google Scholar

30 Compare Myers, “Burning the Truck” (cited in note 19).Google Scholar

31 In public demonstrations on the leasehold issue, signs saying “stability in housing” and “stabilize leasehold” are prominent. See Delorme, “Condominiums” (cited in note 20).Google Scholar

32 Compare Alfred Winslow Jones Life, Liberty and Property (Philadelphia: Lippincott, 1941).Google Scholar

33 Delorme, “Condominiums.” The state's lieutenant governor who supports a cap on lease rent used similar justifications. “Nothing is sacrosanct” in society, he argues. There is a broader “social contract” that governs contracts between individuals. Ibid.Google Scholar

34 Perin, Everything in Its Place (cited in note 15); Scott Donaldson, The Suburban Myth (New York: Columbia University Press, 1969); Judith I. De Neufville & Stephen E. Barth, “Myth and the Definition of Policy Problems: An Exploration of Home Ownership and Public-Private Partnerships,” 20 Pol'y Sci. 181 (1987).Google Scholar

35 In a fascinating study of changes in English copyright laws, Mark Rose shows how gradual but basic cultural changes in what was regarded as the natural order of things converged with active interest group politics to broaden the copyrights protection given to authors. When English society accepted the view that authors had their own original voice rather than simply being communicants of transcendent messages, it became easier to recognize the author's rights in law. See Mark Rose, “The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship,” 23 Representations 51 (1988).CrossRefGoogle Scholar

36 Merry, , Getting Justice 5–8 (cited in note 22); Matsuda, Mari, Law and Culture in the District Court of Honolulu, 1844–45: A Case Study of the Rise of Legal Consciousness, 32 Am J. Legal Hist. 16 (1988).Google Scholar

37 Merry, Sally Engle, “Legal Pluralism,” 22 Law & Soc'y Rev. 869 (1989).CrossRefGoogle Scholar

38 On rights as frames of reference, see Brigham, John, “Rights, Rage, and Remedy,” 2 Studies in Am. Pol. Dev. 303 (1987).Google Scholar

39 Rose, Carol M., “Possession as the Origin of Property,” 52 U. Chi. L. Rev. 73, 87–88 (1984).Google Scholar

40 Rose, Carol M., “Crystals and Mud in Property Law,” 40 Stan. L. Rev. 577 (1988), identifies two tendencies in property law, “crystals” and “mud.” Crystal tendencies stress clarity and clear prediction. Their objective is to treat all parties, including friends and neighbors, in the same distant manner. Mud tendencies stress flexibility, not clarity. Policies that reflect this approach focus their attention on the relationship between parties. Mud approaches assume that even people with whom another person has no connection should be treated as part of the community.CrossRefGoogle Scholar

The discourses of both the landowners and the leaseholders intersperse both crystal and mud ideas. On the one hand, the landowners take a strong crystal approach when they argue “a lease is a lease is a lease!” On the other hand, while the landowners were more than willing to label the lessees as persons outside the community, these same landowners wanted the law to recognize the special needs that emanated from their desire to keep their land as a family legacy. The lessees reverse this pattern. Their stories, particularly about identity, describe a world of cool and distant relationships, yet their interpretation of contract law stresses the need for flexibility.Google Scholar