Group 14:
Housing Challenges
Finding
Aloha in the Law: Solutions for Land Use Conflicts Exposed by the Maui Fires
Peter Fendel, Pepperdine University, Rick J.
Caruso School of Law
The fires that devastated the West Maui community of Lāhainā on August
8, 2023 destroyed the homes and businesses of thousands of Kānaka Maoli (Native
Hawaiians) and Kamaʻāina (permanent, but non-native residents of the State of
Hawaii). At least 100 people lost their lives in the sudden and merciless
inferno. The disappearance of so many multi-family residences on Maui
poignantly exacerbated the long-standing housing crisis in the State of
Hawai’i.
This article analyzes and critiques the seaworthiness of solutions
proposed by state and local governments, such as Governor Green’s suggestion to
freeze the short-term housing market and proposed legislation to thwart new
purchases by foreign interests. Next, it proposes new solutions for empowering
and protecting generational land ownership of Native Hawaiians by incorporating
the principles of Natural Law, Legal Realism, and Critical Legal Theories.
Finally, it explores the implications of these proposals for future legal
responses to natural disasters and restorative justice of indigenous peoples’
property ownership rights in America.
Of course, it is necessary to evaluate these catastrophes through the
lens of a cultural and political history of colonialism, oppression, and
American exceptionalism. It is also crucial to recognize the uniquely Hawaiian
nuances of an indigenous population, who, unlike their mainland counterparts,
were not uprooted and relocated to the most undesirable parts of the land, but
instead share their tiny island chain in a sometimes tenuous yet relatively
harmonious existence with their haole (formerly: any foreigner; modernly: any
Caucasian) neighbors.
Putting
the Choice Back in Housing Choice: Algorithmic Discrimination Against Rental
Voucher Recipients
James Matthews, Suffolk University Law School
Tenant-based rental voucher programs like the federal government’s
Section 8 program are intended to provide low-income families, people with
disabilities, and other historically marginalized groups access to safe and
affordable housing in the private market. Such programs also have the potential
to promote economic mobility and combat residential racial segregation by providing
households with greater housing choice, including the ability to move to
neighborhoods of better opportunity. However, due to discriminatory landlords,
soaring rent prices, and other impediments, voucher holders face significant
barriers to using their vouchers in the homes and communities where they want
to live. Moreover, housing providers now increasingly rely on software
applications powered by complex algorithms that make automated decisions at
every stage of the rental process from advertising, to rent prices, and tenant
selection. Recent lawsuits and empirical studies have demonstrated that many of
these automated decision-making tools unfairly discriminate against voucher
holders because they are based on inadequate data or are otherwise incompatible
with the voucher program’s administrative requirements. This article builds on
scholarly work that has explored the issue of algorithmic discrimination in
housing decisions, to address the distinct ways in which automated tools impact
housing choices for voucher holders. This article also proposes recommendations
for mitigating these discriminatory housing practices to ensure voucher holders
have equal access to housing opportunities.
Discussant and Moderator: Michelle Y.
Ewert, Washburn University School of Law