Saturday, March 20, 2010
Thanks so much to Ben for the opportunity to blog here at PropertyProf, and for the kind welcome. As Ben said, a large part of my research focus is on the evolving relationship between property rights and social standards. I thought I'd start my blogging stint here by commenting on some fairly recent news stories that I think capture that dynamic (and, truth be told, that I write about in my latest article, which may or may not be accessible yet on SSRN).
Many property rights scholars have recognized that property rights evolve with changes in normative sensibilities and economic incentives -- although which of those two is the primary driver of evolution has been a matter of considerable debate. Today, changes in both normative sensibilities and economic incentives seem to be driving changes with regard to the right to make a particular use of public space -- day labor markets. Every morning in cities large and small across the United States, men and women gather in hope of being hired for short-term labor projects, particularly in construction and landscaping. The practice has existed for years, largely without controversy. But recently things have changed. In some places, ordinances have been enacted to restrict or prohibit the use of public space for day labor markets; in others, ordinances that have existed, but never been enforced against day labor markets, are being used to shut them down; in still others, neo-Nazis and other groups have gathered to disrupt the markets and drive away those participating in them. The Town of Oyster Bay, New York, has gone so far as to prohibit people standing on sidewalks from making hand signals to passing vehicles. Why?
I think we can posit at least two explanations, one economic and one normative, though the two are not entirely distinct. The recession has increased the scarcity of a valuable (even critical) resource: work. As competition has increased for that resource, competitors act to limit their rivals' access to it. By limiting or destroying the right to use public space for day labor markets, other job applicants increase the cost of obtaining work for those laborers, and thus decrease the competition they face. Note that this isn't necessarily the efficient result a Demsetz might have envisaged; rather, it may simply be the result of political leverage that allows the powerful to, in Stuart Banner's words, "grab a larger share of the pie." Regardless, however, the incentive driving the change is economic.
But there is a normative explanation as well: the vast majority of the day laborers are Latino, and many are illegal immigrants. Neo-nazis clearly aren't showing up to make trouble just because of economic incentives. But even among the less extreme population, growing anti-immigration sentiment is undoubtedly a factor in the increasing normative disapproval of day labor markets in public spaces. Those changes in normative sensibilities are driving changes in law and, consequently, property rights.
I look forward to your comments, but they are held pending approval, so there will be some delay in posting.