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On August 15 the Atlana Journal Constitution ran a story about day laborers soliciting work on streets in metro Atlanta. The Atlanta suburb of Marietta bans solicitation of "temporary employment" or the hiring of day laborers on the streets, sidewalks, parking lots, public property or public rights of way in the city. Neighboring Cobb County considered doing the same thing, but then "backed off, citing a recent federal court decision that struck down laws the town of Hazleton, Pa., had adopted to crack down on illegal immigration."

On the face of it, this makes no sense. The Marietta ban on street solicitation and the Hazelton ordinance that was struck down are apples and oranges. The Hazelton ordinance imposed fines on landlords who rented to illegal aliens and denied business licenses to firms that employed them. The main problem with the city's ordinance according to the court was that it was pre-empted by federal immigration law. See http://www.aclupa.org/downloads/Hazletondecision.pdf

By contrast, the Marietta ban on street solicitation does not single out undocumented workers, latinos, or any other group. Street solicitation for temporary employment by anyone is banned from public space in Marietta. This ban may be invalid, say for violating rights to free speech. But it would be for completely different reasons than those used to overturn the Hazelton ordinance. Cobb County missed the point.

Or did it? Bans on street solicitation enacted in the past 15 years are more likely than not intended to exclude illegal aliens from communities. Mostly latino immigrant day laborers standing on street corners soliciting work have become a most conspicuous indication of the amount of immigration the U.S. has experience over the past decade or two. Frustrated with perceived inaction by the federal government, some have turned to their local governments to do something about illegal immigration. Immigration policy per se is the exclusive province of the federal government. But regulating land use is not. Deciding how city streets, sidewalks, and other property gets used is a power enjoyed by local government.

The power to regulate land use can be used for legitimate ends. Cities engage in zoning to separate smoke belching factories from leafy residential neighborhoods. They enact rules of the road to ensure that traffic continues to circulate in a safe, yet expeditious, manner.

Its been said that when you have a hammer, everything looks like a nail. In this case one might say, even if you know it's not a nail, you'll use a hammer anyway if that's all you have. Localities are trying to control illegal immigration with the tools at hand. Many have turned to their power to regulate land use by banning solicitation of temporary work on the street. When asked, cities justify this by talking disingenuously about "safety" and "relieving traffic congestion." Cobb County was transparent. County officials knew the reason for banning solicitation of temporary employment had nothing to with traffic circulation, and everything to do with trying to be perceived as doing something about illegal immigration. Seeing Hazleton get its hand slapped after acting with the same motivation, Cobb County backed down.

Let's thank Cobb County for giving us a peek at the legislative intent behind recent bans on street solicitation.

The results of A National Day Labor Survey were recently made available, bringing data to a subject often covered by anecdote. The survey was made of more than 2600 day laborers at more than 200 hiring sites in 20 states. The results have been interpreted in at least a couple of publications.

One was put out by Abel Valenzuela, Nik Theodore, Edwin Melendez, and Ana Luz Gonzalez, "On the Corner: Day Labor in the United States" (UCLA Center for the Study of Urban Poverty 2006). Valenzuela and his co-authors reported data on the dangers faced by day laborers. In the two months before the survey was taken, at least half of the participating day laborers had experienced wage theft or underpayment. Twenty percent had been injured on the job. Eighteen percent had been subjected to violence by their employers. From this the authors concluded that day laborers and their employers need to be regulated. They advocated the expanded use of formal hiring centers. These centers often require employers to register and assist day laborers in taking action against employers who fail to live up to their contractual or other legal obligations.

A similar conclusion was reached by Arturo Gonzalez in "Day Labor in the Golden State," in volume 3 of the publication, "California Economic Policy" (2007). Gonzalez is somewhat less enthusiastic in his support of formal hiring centers. He does believe, however, that centers, coupled with ordinaces controlling day labor behavior on the street, can be carefully designed for the good of everyone. Along the way Gonzalez points out some gems in the data. One interesting fact concerns the relative earnings of vendors who look for work primarily in informal markets on the street and those other vendors who look for work in formal hiring centers. Both informal and formal vendors spend the same amount of time looking for work, but informal vendors are more successful finding it. It seems that contractors, one of the principal employers of day laborers, don't like hiring centers. They prefer to find day laborers on the street. Informal day laborers earn more money than their counterparts at the hiring center, who wind up sitting around more waiting for someone to walk through the center's front door.

These authors respond to the dangers of informal day laboring by wanting to stamp it out and bring it inside. But it seems to me that the data on the wage differential between informal and formal day laborers shows that the market has already sorted this out. There are two kinds of day laborers: those who play it safe, and those who embrace risk. The play it safe crowd goes to hiring centers. With the center's backing they have a better chance of not getting ripped off or busted by the police for loitering. But this comes at a cost. We always knew that these centers were costly to set up. But now this data shows that the day laborers at the center pay a price, too. They earn less money.

The risk taking day laborers prefer the street. They want to make their own deals, and do so where the action is. Employers want freedom, too, and if you want to play ball with them and have a better shot at maximizing your daily take, you'll hustle business outside. And why not let them? The informal day laborers know what their getting into. Why not let them decide whether they are cautious or risk averse?

This reminds me of investing. Some play it safe and put their money in government bonds. They have a low rate of return, but are pretty safe investments. Other folks invest in stocks. These are much more volatile, but hold out the potential for higher return. We don't prevent investors from buying stocks. Why should we protect the day laborers from themselves by keeping them off the street? Of course selling labor on the street may be a problem for the neighbors-- and that might be grounds to regulate behavior on the sidewalk. But if the point is to help the day laborers, taking away their choices doesn't help them at all.

Observers frequently assume markets are sources of illegality, particularly in taxation or merchandise acquisition.  Clearly some merchants in some places do break some laws, but so weak a contention can be leveled at storefront business, government officials and manufacturers, all of whom digress from law, ordinance and commonly accepted behavior and such digressions help make possible merchants digressions from law, ordinance or commonly accepted behavior.  Yet turn this notion upside down.  Since their inception laws have been made for markets, not the other way around.  Markets and merchants have been exceptions to laws, just as corporations and the rich avoid many laws today.  But, unlike the rich, merchants often seek reasons to maximize their tax liability in order to get access to credit markets from which the marginalized are excluded.  Thus, with respect to some “illegal” behavior, we find merchants and markets would provide richer social benefits if, as historically, they were regulated distinctly from the rest of society, and eventually incorporated into that society.   

Take taxation, do merchants evade taxes, do they minimize tax liability?  Yes, as do businesses and households.  Some people use evasion to make a political, social or economic point, for instance they withhold taxes because they believe a war or wars generally are unjust, or they evade taxes because they perceive inequality in education and send their children to private schools or they believe it unjust that large corporations are given tax breaks and feel their business deserves similar treatment.  But when do most businesses or corporations seek to increase their tax liability?  What rationality is in that?  But it is precisely the case with street merchants who purposefully increase their liability when they wish to supplement their street business with storefront business or when they hope to move from street to store.  Access to credit markets demands proof of profitability!  Absent the political connections or track record of profits, vendors have no choice but to demonstrate their ability to pay taxes, they do so by paying more than liable, and establishing without question, their creditworthiness and by proxy, ability to run a business.   

Thus, we find that one’s perspective is particularly salient with respect to criminality.  This charge of fostering illegal behavior is perhaps the most severe charge against markets and merchants, but it comes from shoehorning them into assumptions of storefront or contemporary retail practices, practices for which merchants are unsuited, but are often attempting to access.  Instead of condemning markets and vendors some allowance should be made for their unique activities contributing to economic and social and other goals.  In this sense markets should leverage aspirations for mobility and become a policy tool to encourage entrepreneurship, merchants should not languish in an economic purgatory, but instead occupy a transitional space where their activities contribute to their household and neighborhood and can eventually produce conventional businesses.

Santa Fe, New Mexico bills itself as the "City Different." I think they're on to something. When I visited a couple of weeks ago, a bowl of oatmeal, blueberries, and a cup of coffee set me back $13. Okay, they were all organic. And the cafe was beautiful-- a harmonious blend of modernism and southwestern chic. But I wanted beauty on a budget, so kept driving north.

Just 20 minutes later I found paradise. For the past three dozen years Native Americans in northern New Mexico have been hosting an annual arts and crafts market. This year the market was held at the Eight Northern Indian Pueblos Visitor Center near Ohkay Owingeh just north of Espanola, New Mexico. Hundreds of crafts persons sold all manner of goods: pottery, jewelry, beadwork, blankets, sculpture, paintings, and woodcarving. There was also dancing. Pueblo members dressed in elaborate costumes performed the deer dance, buffalo dance, and others. All of this took place outside.

The master of ceremonies talked a bit about cultural preservation. He mentioned how important the Pueblo Revolt of 1680 was to preservation of pueblo culture, and pointed out how the puebloans continue to push for federal legislation to safeguard pueblo languages. It struck me that this open air market was also an important tool toward preserving pueblo culture. By bringing crafts persons from all over northern New Mexico together, the market brought about a critical mass that attracted buyers from as far away as California, Mississippi, and the Netherlands. Markets are the handmaiden of culture.

The arts and crafts market was more than a feast for the eyes and ears. My sense of taste (or what passes for it) was also rewarded. For $5 I enjoyed iced tea and fry bread with beans and cheese. Add this to the $5 market admission, and I got a full day's cultural experience for less than I'd spend at the movies. If Santa Fe is the "City Different," the Eight Northern Pueblos Arts and Crafts Show is the "Market Different." It's a difference that broadens the mind and doesn't put you in debt.

For more information, visit the eight northern pueblos web site: http://www.eightnorthernpueblos.com/

Occasionally academics, business people, planners and policy makers assume Markets are unorganized and disorderly.  These assumptions are rooted in prevailing theories of human behavior, for instance if business is organized then street business is not; or in ideas of what legitimate business is, for instance the only activity which counts as business is that activity which is taught in business schools and involves a variety of other practices (accounting, etc); or in ideas of planning and policy wherein the largest economic activities, the most remunerative, easily measured, and regulated are those most desirable.   But these assumptions are fatally flawed and measure human activity by rules and regulations instead of establishing desirable rules by human needs and aspirations.  

The fatal flaw in these assumptions is the “truth” of the logic of if/then statement.  If storefront business is orderly, organized, recognized by other social institutions like business schools; sought and even de-regulated by planners and policy makers then street markets, absent from these connections and assumptions must not be organized.  But of course street business is organized and of course, like all human activities, it is regulated, and the truth of this is obvious when we consider the vast variety of family forms that exist.  Families are not unorganized, rather we might say, that like street markets, families are disorganized!  There are numerous family forms and even more numerous ways by which families organize their lives and though we may not recognize the form or organization from our perspective the fact that some form/organization exists is testament to the existence of that form/organization.  

So street markets are organized, but recognizing that organization requires two moves, first, a willingness to suspend one’s assumptions about “legitimate” organization and second, the desire to understand the principles organizing some market in some particular place.  Chaos it may seem, but there is always some order(s) producing the activity we observe. In brief, markets are often, and purposefully, unorganized, with several organizing principles operating at the same time.  Planners, policy makers, business people and academics would do well to understand these organizational principles, synthesize how they come together and work, and recognize that for more than a millennium markets have operated in uniquely distinct ways from other commercial and social activity, and for good reasons.  More about that in a later note.