Legal Commentary

Lately, it has not been easy being a conservative Republican. My hyper-polarized co-partisans are just downright embarrassing. Their most recent act of public buffoonery has been to respond with Comedy Club-perfect timing to Bill Cronon's accusation that they behave like McCarthy by, well, behaving like Nixon, with Dirty Tricks-style FOIA requests for Cronon's e-mail records. (Yes, as Slate's Jack Shafer notes, this FOIA requst is not illegal -- but this tactic is precisely the sort of harassing use of FOIA that Republicans themselves denounce when the shoe's on the other foot).

But, just when I was about to turn in my conservative badge, the New York City Council renews my flagging faith in good old conservative suspicion of Leviathan by engaging in the sort of egregiously maladroit statism that we have gradually come to expect from Gotham. Lately, Wal-Mart is trying a new tactic in trying to breach the blatantly protectionist walls of New York's zoning by building a use "as-of-right" -- a smaller store -- that does not require any discretionary Planning Commission approval. This new strategy has the City leadership in conniptions, because there is precious little that they can do to exclude WalMart without blatantly tipping their hand that they are engaged in illegally protectionist zoning.

You do not have to like WalMart to hope that these efforts fail, because NYC's raw zoning protectionism does nothing to benefit consumers or workers in whose name it is practiced.

The problem is that incumbent businesses benefiting from zoning walls do not provide any assurance that they will pay a living wage or treat their employees fairly. Indeed, small businesses in Park Slope, an enclave of excruciating political correctness, have been known to violate basic wage laws. Meanwhile, there is much evidence (albeit disputed) that the poor pay more for basic goods. Small wonder, then, that New Yorkers' poll responses seem to suggest the New Yorkers would -- reluctantly -- shop at WalMart, despite the low wages: Sure, WalMart does not offer good wages along with their low prices -- but local businesses often offer neither. Why, then, should they get the benefit of protectionist zoning walls? The low quality of low-income residents' shopping opportunities might explain why Charles Fisher of the Hip-Hop Summit Youth Council supports WalMart.

This is not to say that every New York retailer is indifferent to labor: The major chains like Gristedes have entered into decent collective bargaining agreements with United Food and Commercial Workers Union Local 1500. The problem is that the rents of protectionist zoning, like the rain, fall on both the just and unjust.

In short, protectionist zoning is a crude instrument for insuring a good balance of benefits to labor and consumers.

So here is a suggestion: Why not allow WalMart to open up stores in any low-income neighborhood that is served by neither (a) a major unionized retailer who pays local residents wages high enough to compensate for the higher prices that they charge the local shoppers or (b) a non-union retailer who offers prices comparable to WalMart? If local residents do not actually get higher wages sufficient to balance out the higher prices that local retailers charge, then zoning to exclude WalMart does little to benefit the worker-shopper.