Yale Law Policy Review
Copyright (c) 2002 Yale Law
& Policy Review
& Policy Review
20 Yale L. & Pol'y Rev. 137
LENGTH: 24255 words
ARTICLE: Informality, Illegality, and Inequality
Jane E. Larson+
+ Professor, Law School, University of Wisconsin-Madison. The North American
Program of the Land Tenure Center, the University of Wisconsin Law School, and
the University of Wisconsin Graduate School provided generous research support
for this project. The academic communities of the University of Michigan Law
School, The University of California at Los Angeles, Seton Hall Law School, and
Lat Crit VI heard and commented on earlier versions of this Article. Among the
many people of Texas who invited me into their work I especially thank Rebecca
Lightsey, Amada (Aide) Villareal and Martha Bazan; David Hall and Donna Harvey;
Blanca Juarez; David Arizmendi and Lydia Gonzalez Arizmendi; Amy Johnson; Lee
Maril; John Henneberger; and Peter Ward. Fran Ansley, Mauricio Garcia Villegas,
Harvey Jacobs, Guadalupe Luna, Art McEvoy, Stewart Macaulay, Elizabeth Mertz,
Thomas Mitchell, Leslye Amede Obiora, Boaventura de Sousa Santos, Gene Summers,
Gerald Torres, Lucie White, Joan Williams, and especially Heinz Klug and Berta
Hernandez-Truyol provided valuable insight and support.
... Among the border's
"homemade approaches" to this growth without prosperity has been the emergence of informal
housing - unregulated settlements known in the region as
"colonias." ... Yet within our borderlands, more than 400,000 people now live in the
housing settlements known as colonias. ... I. Colonias As Informal
Housing Production. ... So, too, colonias follow the same dimensions of nonconformity
housing settlements throughout the world. ... Typically, informal
housing settlements grow on cheap land at the distant periphery of urban centers. ...
housing, the homebuilding comes first, and everything else follows. ... This essay
shows that informal
housing does exist (and more than just marginally) in the United States. ... Mexico
now not only tolerates informal
housing, but seeks to stimulate its production. ... Informal
housing has become so common in Mexico that it has generated political movements. ...
housing a solution to, or only a symptom of, widening inequality? ... Such codes
would have the same practical effect as making informal
housing outright illegal. ...
The history of countless nations illustrates how borderland regions frequently
depart from the norms of interior zones... . Isolation, weak institutions, lax
administration, and a different economic orientation prompt people on the
periphery to develop homemade approaches to their problems... .
Introduction: From the Periphery to the Center
The United States-Mexico border historically has been characterized by its
isolation from the core of both nations. The United States side has viewed the
border as a place of lawlessness, poverty, backwardness, and ethnic difference,
physically and culturally distant from either the Midwestern
"heartlands" or the urban
n2 Mexicans, too, traditionally dismissed their northern borderlanders as pocho,
n3 tainted by their proximity to the United States.
n4 Margaret Montoya captures the view from both sides:
"Border towns everywhere are different, incorporating the characteristics of the
nation-states they link together, but nowhere are they as distinct from their
respective core zones as along the United States/Mexico border."
Once on the periphery of both nations, today the United States-Mexico border
[*138] is the vanguard of each country's experience of globalization.
n6 As the global context overtakes the nation-state, it is at the nation's points
of contact with the world - the margins, the edges, the boundaries - that the
global becomes local. In the borderlands we are witnessing the invisible hands
and virtual realities of globalization manifest as material social forms.
Boaventura de Sousa Santos calls this process
"localized globalism," or
"the specific impact of transnational practices and imperatives on local
conditions that are thereby destructured and restructured in order to respond
to transnational imperatives."
n7 The free-trade enclave of the maquilas is one familiar localized globalism
found at the border.
n8 Santos distinguishes such localized globalism from
"globalized localism," or
"the process by which a given local phenomenon is successfully globalized," such as the emergence of the English language as an international language of
business or the worldwide spread of American music, fashion, and fast food.
This idea of a plurality of
"globalisms" helps explain an apparent paradox: Why has the border's emergence as an
important region for investment and policy not transformed its social and
economic marginality within the national context? If one common idea of
globalization is that the process unifies or homogenizes the world ("the global village"), Santos contends instead that globalization replicates existing patterns of
power and influence, with the core countries specializing in globalized
localisms and the peripheral countries in
[*139] localized globalisms.
n10 To extend his point, if the United States' southern border historically was an
internal Third World, its experience of globalization can be predicted to
reinscribe its role on the periphery.
This prediction holds true. Notwithstanding economic development, the
liberalization and intensification of trade, and strategic geographical
location, the southern border is among the poorest regions of the United States.
n11 More than half of that international boundary links Mexico with the State of
Texas, and this is the most populated and economically vital stretch, with
large transborder urban areas at Brownsville/Matamoros, McAllen/Reynosa, Rio
Grande City/Camargo, Laredo/Nuevo Laredo, and El Paso/Ciudad Juarez.
n12 In recent years, the Texas sides of these
"twin cities" have been among the fastest growing areas in the United States. Between 1990
and 2000, the county surrounding McAllen grew 48.5%, the county surrounding
Laredo grew 44.9%, the county surrounding Rio Grande City grew 32.3%, the
county surrounding Brownsville grew 28.9%, and the county surrounding El Paso
n13 Yet as the border region grows, its poverty only increases. Thirty-five
percent or more of people living in the counties containing these burgeoning
cities are poor, with poverty rates for children 10% or more higher than the
overall poverty rate.
n14 (This compares to 16.7% of people in poverty for the State of Texas (23.6% of
n15 and 13.3% in poverty for the nation as a whole.)
n16 In 1980, by contrast, only 28% of people in these counties were poor.
n17 A state official aptly captures the seeming paradox of the border's
"growth without prosperity."
[*140] Among the border's
n19 to this growth without prosperity has been the emergence of informal
housing - unregulated settlements known in the region as
"colonias." In regional usage, a
"colonia" is a semi-rural subdivision of substandard
housing that lacks basic physical infrastructure, in particular, clean water, sanitary
sewage or adequate roads.
n20 More than 1500 colonias have been identified within the United States,
n21 virtually all of them in Texas.
n22 Colonias cluster around the state's booming border cities, with 75% of the
colonia population living in the counties surrounding Brownsville, McAllen,
Laredo, and El Paso, Texas.
Colonias are part of the large, growing and yet little-studied informal economy
in the United States. Informal economic activity takes place outside the
structures of governmental regulation, in particular labor, tax, health and
safety, land use and environmental, civil rights, and immigration laws. Most
colonia settlements are extra-legal rather than illegal: When residents and
developers created existing colonias, subdivision and sale of rural land for
residential construction without provision of basic infrastructure or access to
public services was lawful, and no building codes set
housing standards. Yet where the state fails to regulate activities that in other
settings are regulated according to accepted patterns, a kind of informality
develops, albeit one built on legal and material nonconformity rather than
One can observe informal
housing production in the colonia pattern everywhere in urban areas of the developing
world: In the Distrito Federal surrounding Mexico City, for example, more than
40% of the population live in colonias populares (popular
housing) or fraccionamientos illegales (illegal subdivisions).
n25 Similar percentages are found elsewhere:
"If we consider land
[*141] tenure, infrastructure requirements and building standards, we find that an
average of 40% and in some cases as much as 70% of the population of the major
cities are living in illegal conditions."
n26 Thus, most urban
housing worldwide develops outside of formal law and markets, either by means of land
seizure or squatting, or by nonconforming subdivision that falls short of
Regardless of location,
housing production in the informal sector centers upon four principles: (1) the
occupants do most of the work to construct a house (often the terms
housing are used); (2) constructed
housing takes a nonstandard form; (3) the settlements or subdivisions into which the
housing is clustered are illegal or nonconforming; and (4) the financing for
housing production comes from private capital invested outside of formal credit
markets or institutions.
Sociologists and anthropologists seek to capture the essence of informality by
focusing on its social particularities, observing, for example, operations that
"small scale, labor intensive, requiring little capital, and locally based."
n28 These scholars observe that women, immigrants, and people of color are
overrepresented in the informal economy, presumably because they are vulnerable
to exclusion from the formal economy.
n29 Unpaid family labor, including child labor, is common.
To date, informal
housing has been studied almost exclusively as a phenomenon of the developing world
and not of the United States.
housing is hardly recognized as a fact in this country,
n32 much less treated in state policy as a legitimate means of
housing production. Yet within our borderlands, more than 400,000 people now live in
[*142] known as colonias.
n33 Further, growing evidence indicates that colonia-type development is beginning
to move away from the border into other parts of Texas where low-wage labor,
urbanization pressure, inadequate
housing, cheap land, and minimal land use regulation come together.
n34 Peter Ward speculates that similar patterns of informal settlement and
housing provision may already exist throughout the United States, but that researchers
have neither looked for such settlements, nor understood their character or
significance when researchers came upon them.
In an earlier work on the colonias, I predicted that working poor households in
the United States increasingly would turn to informal
housing in order to survive the lack of basic social provision, in particular the
squeeze between falling real wages and declining governmental support for
housing or income maintenance.
n36 This economic
"squeeze" has only tightened throughout the 1990s, as policies of trade liberalization
and government restraint in social welfare spending (all part of the
globalization agenda) took hold. The growth of colonias in Texas during these
years provides further evidence that informal
housing production has emerged as a strategy for economic survival inside the United
This essay extends that analysis, situating the growth of informal
housing within the broader context of globalization, and predicting that informal
housing will continue to expand within the United States, moving beyond the
borderlands. If this proves true, the confounding problems of informality, like
the phenomenon itself, will move from the borderlands to the heartlands, and
into the mainstream of legal and policy debate. In anticipation of these
developments, this essay examines the confounding relationship between
informality and the law.
The essay argues that fundamental values of legal culture stand in the way of a
productive engagement with informality in the United States. Informality
contradicts legality, and especially equality, as we conceive these values.
[*143] within this tradition, informality is an abuse of law, as well as tolerance of
exploitation and inequality. Accordingly, informality creates the best argument
for stepped-up regulation.
But under conditions of economic inequality, do ambitious and absolute
regulatory standards advance or frustrate social justice? Legal scholars who
wrestle with questions of poverty are just beginning to recognize this question
n37 This essay spotlights these preliminary and cautious inquiries, and
generalizes their significance. It presents a converging critique of
unattainable standards naming existing models of regulation as one reason the
poor cannot provide for their basic needs. If these conventional legal
strategies are not re-examined in light of the widening disparities of wealth
that accompany a globalizing economy, the United States may be unable to avoid
making unproductive, indeed unjust, policy even as informality grows.
This essay urges that regulatory policy in the United States support and
neither punish nor prohibit those who shelter themselves informally. Following
established terminology from the international literature, this strategy is
"regularization." Regularization is not a policy of wholesale deregulation. Nor does it imply
negotiated or discretionary enforcement of rules that otherwise remain in
general force. Instead, regularization scales back regulatory standards for
some populations, and
"legalizes" some illegal
housing conditions, in a program aimed at encouraging self-help investment in shelter.
No level of government in this country follows a policy of regularization, and
to get there from here would require changes in conventional political thinking
as well as innovative reforms in law. Conventional regulation establishes
universal standards and obliges full and immediate compliance. Regularization,
in contrast, sets standards relative to the means available to the regulated,
and enables flexible and general compliance, with the goal of progressive
improvement rather than immediate, full and universal compliance.
Regularization is an alternative regulatory strategy pioneered in the
developing world and designed for conditions of extreme economic constraint.
What stands between the United States and such a policy? There will be debates
about whether regularization, or one of the established choices of regulation
or deregulation, is the best policy choice. This essay focuses instead on the
meta-level barriers to considering any alternative to these established
"flexible" modes of regulation violate fundamental norms, specifically those of legality
and equality, meaning these alternative approaches could not be translated into
the legal system of the United States?
As this essay casts the conflict, these are theoretical problems. But like most
legal issues, the conflict appears most vividly and urgently in practical form.
Accordingly, after setting out the theoretical tensions between legality,
[*144] equality, and a progressive policy of regularization, this essay telescopes
down into a tight frame on a specific policy issue: Should the regulatory
regime of building codes be applied to the Texas colonias? The essay examines a
published exchange that I had with Richard Delgado on this question. Delgado
believes that to accept lesser regulatory standards in the name of pragmatism
or opportunity may lend law's imprimatur to inequality. Thus, alternative
models like regularization carry an unacceptable price. This essay reaffirms a
critique of unattainable standards. To hold to formal equality in economic
regulatory standards and enforcement will harshly burden those already hardest
pressed to survive the new economic order.
This essay then expands out again, seeking to generalize the attributes of the
regularization policy in order to identify a new model for regulation under
conditions of extreme economic constraint, with the goal of finding a legal
technology appropriate for regulating the informal economy. For this purpose, I
"progressive realization" structure from international human rights law as a new regulatory form.
Progressive realization commits government and the regulated to standards of
housing, but demands in compliance no more than that the regulated commit the maximum
available resources. This is the meaning of equality under the alternative
model. Compliance is always possible under the
"maximum available resources" rule, and progress toward the standard always demanded by the
"progressive realization" rule. This is the meaning of legality under the alternative model.
This essay proposes to build a domestic program for regulating
housing quality and land development around the progressive realization of standards.
Such a program would better balance the regulatory burden on diverse
populations, the public interest in adequate
housing, and an aspirational commitment to elevating living standards in pursuit of
social equality. Linked to a comprehensive program of regularization,
progressive realization places law behind, rather than against, the activities
of informals, without sacrificing legality or equality.
Progressive realization is not an easy idea to incorporate into our legal
tradition. Indeed, the United States has not adopted the international
agreement that created the concept,
n38 arguing that an obligation that creates anything short of absolute and
immediate compliance is not really
n39 Granting the conceptual unfamiliarity of progressive realization, informality,
too, is an unfamiliar problem. At the least, we must consider new legal
strategies. For to consider how law should respond to informality is to face a
basic question of political strategy in the brave new world of globalization:
What does economic survival, not to mention social emancipation, look like for
those people simultaneously
[*145] at the vortex of global restructuring and yet marginalized within its new
circuits of power?
I. Colonias As Informal
There is no typical colonia; living conditions vary greatly depending on
differences in age, size, location, service provision, security of land tenure
housing consolidation, settlement density, and community solidarity. But there are
commonalities, defined importantly by the ways in which these settlements
depart from the norms established by regulation in the United States for land
housing development, and by formal markets for
housing finance and production. So, too, colonias follow the same dimensions of
nonconformity as informal
housing settlements throughout the world. Thus, colonias are not an ad hoc aberration
peculiar to our borderlands, but rather a patterned alternative to what the
United States knows as the
"normal" practices of
housing development. The following section explores this pattern of
housing development, and how it is expressed in the colonias.
housing settlements grow on cheap land at the distant periphery of urban centers.
Residents may bypass law altogether and squat on the land, or purchase lots
from developers in illegal or otherwise nonconforming subdivisions. In either
case, settlers and developers follow a conscious strategy of avoiding
regulation. Nonconformity with law is a means of gaining access to land not
otherwise available for development, and access to
housing not otherwise affordable for the settler population.
Upon acquiring land, the settlers move quickly to construct temporary
housing. Any improvements on the land, however provisional, manifest the settlers'
determination, despite legal uncertainties, to retain the land and develop it
"signaling" begins a nuanced political negotiation with the government and with public
opinion. At this stage, the new occupants cannot claim good title, leaving
their investment of time, labor, money and materials vulnerable. Yet, they must
risk enough to force a political accommodation of their interests. Their goal
is to prevent public authorities from enforcing existing regulations to evict,
block the settlement, or control building patterns, or moving to enact new
rules that would increase shelter costs before the residents have time to build.
After settlers make an initial claim by establishing and occupying a temporary
shelter, the household begins the slow process of
"consolidating" a permanent dwelling. Settlers typically build piecemeal, with the household
providing both labor and capital. Self-builders usually have some construction
skills, but not always technical expertise: When they build, they often use
nonstandard materials, a shell of an existing structure of uncertain quality
(such as a trailer or a shack), or improvised plans. As incremental
construction progresses, money and time pressures may lead to further
down-sizing or cutting of corners.
[*146] Settlers purchase materials as money becomes available; when money is tight,
the work stops. This kind of
housing construction can take many years to complete, and families often live in
housing on a semi-permanent basis.
n40 The resulting permanent structures rarely meet conventional building codes,
and may endanger the family's safety and health. The speed of
housing consolidation depends, obviously, upon household income, but also upon
security of tenure
n41 and the rate at which public services such as water and wastewater come on
n42 Where land costs are high or are increasing, a newly-settling household may
"graduate" from a temporary to permanent shelter, and
housing quality deteriorates further.
Due to their unregulated character, informal settlements, at their inception,
usually lack access to water and sewer hookups, leading to improvised and
inadequate solutions for the storage of drinking water, and the disposal of
human waste. Perhaps more than any other aspect of nonconformity, water and
waste problems threaten family and public health.
Depending on governmental policy, informal settlements may or may not gradually
"regularize," shedding their illegal or nonconforming status and acquiring basic services
and infrastructure. Regularization policies typically involve two components:
Juridical or legal regularization clears or confers formal legal title to the
land, and physical regularization provides infrastructure and access to public
services. If the land was squatted or otherwise acquired without purchase, the
government must step in to acquire the land by voluntary sale or eminent
domain, and thereby establish the legal basis for transfer of title to
individual lot-holders. Where land was purchased but the development does not
conform to applicable land use regulations, the developer and/or settlers must
bring the settlement into conformity or get it excepted from the law, or the
government must change the law itself to reflect the reality.
Either coincident with or following legal regularization, governments may
physically regularize the settlement by gradual provision and upgrading of a
basic level of public services such as drinking water, sewage, street lighting,
police and fire protection, roads, transportation links, etc. Some governments
housing consolidation as part of regularization programs, providing subsidized credit,
technical support, and access to materials for self-builders/owners.
[*147] This approach to
housing production reverses what residents of the developed world know as the
"normal" sequence of land and
housing development, which begins with planning, followed by servicing, and concluding
housing construction. In informal
housing, the homebuilding comes first, and everything else follows.
The Texas colonias developed by this pattern. A regulatory vacuum existed until
1995, allowing the development of substandard subdivision and self-building.
n44 Rural land fell within the jurisdiction of counties rather than nearby
municipalities. The State of Texas had traditionally delegated few powers to
county governments to regulate either subdivision or
housing quality, and denied the counties any power to plan or zone. Thus, developers
acted entirely within the law when they bought and subdivided agricultural land
outside (but close to) border cities, offering unimproved half-and quarter-acre
parcels for sale to families willing to build their own shelter and do without
piped water, flush toilets, and paved roads.
n45 Developing a colonia in this legal setting meant little more than buying a
field, drawing a grid, grading a few dirt roads, and opening a sales office.
Since 1995, Texas has tightened subdivision requirements with the express aim
of blocking new colonias and growth in existing settlements. Most colonia
subdivisions now existing developed in the pre-1995 period, although new buyers
continue to move into empty lots in established subdivisions. Developers have
added few new subdivisions under the post-1995 rules; simply put, the stricter
regulations have priced the buyer population out of the market.
housing quality in colonias remains unregulated. Most self-builders strive to achieve
a brick-or concrete-block bungalow surrounded by a fence with access to water,
wastewater, and electricity.
n46 Yet the incremental process of owner-construction often begins with a
provisional shelter in the form of a used trailer or mobile home, or a shack.
Such shelter is often unsafe, overcrowded, or otherwise inadequate to family
needs. The family slowly constructs the permanent structure nearby or even
around the shell of the provisional structure. Lack of adequate water or sewer
[*148] quality. The resulting poor environmental conditions spread diseases such as
dysentery, diarrhea, hepatitis, and cholera. Residents without water or sewer
hookups improvise by drilling shallow wells, purchasing water and storing it,
or taking water from nearby irrigation ditches. Human waste may be disposed of
in a pit privy, outhouse, or by septic system.
While the regulatory climate favored development, colonias grew exponentially.
Researchers have traced the first colonias in Texas to the 1950s and early
1960s, but physical isolation made these early settlements largely invisible
for many years. Colonias grew at a steady pace throughout the 1970s, but their
rate of growth exploded in the 1980s. The state first attempted to survey
colonia populations in the late 1980s, but did not attempt a population count.
n48 In 1990 the General Accounting Office, a research arm of Congress, reported
198,000 residents in 842 colonias located in six Texas border counties.
n49 By 1993 the count was 250,000-300,000 people in 1100 colonias,
n50 and by 1996, 340,000 people in more than 1400 settlements.
n51 The 2000 Census counts will likely reveal further growth, notwithstanding the
no-growth policies in force.
During these years of open development before the 1995 moratorium,
quarter-to-half-acre colonia lots cost an average $ 100 down and $ 50-$
150/month for an ultimate purchase price of $ 10,000-$ 12,000. Sellers conveyed
lots by means of contract for deed, an installment arrangement for the purchase
of land similar to a
"rent-to-own" arrangement, offering seller financing backed by the powerful remedy of
n52 Interest rates were high, averaging 12 to 14%. The contract for deed mechanism
worked by creating a source of financing for very low-income buyers otherwise
priced out of formal credit markets.
n53 Median household income in the Texas counties with concentrated colonia
development ranges from $ 14,000 to $ 26,000,
n54 about half of the
[*149] per-capita income for the rest of the nation.
In recent years, the state
n56 and federal
n57 governments have moved to provide water and wastewater service to existing
colonias. These projects bring public services to many settlements, in
particular the largest, most populous and easily accessible colonias. But at
current funding levels, as many as 40% of residents of existing colonias may
never be reached.
n58 With the remedial focus on physical dimensions of these substandard
settlements that cause broader environmental, public health and sanitation
problems, other more localized deprivations that plague colonia residents, such
as lack of garbage collection, street lighting, storm sewers and other flood
control, and fire and emergency protection, have not been a policy priority.
Services that would draw the colonias into the political and economic life of
the municipalities they surround also have not been pursued, notably street
paving or provision of public transport. Programs to address the social
marginality and poverty of colonia residents exist, if at all, mostly through
the efforts of non-governmental organizations. Even the legal definition of
"colonia" adopted in Texas law focuses on inadequacy of water supply or sewer service,
and not the other indicia of deprivation typical of a substandard subdivision.
With the problem thus constructed as a technical one of bringing in water and
wastewater, and with future growth stopped, government officials can insist
they are spending tax dollars to address a one-time emergency. Colonia policy
in Texas does not represent any ongoing policy commitment to
housing the poor. Government accepted the need to provide water and wastewater aid to
existing communities only, and only on condition that local governments prevent
[*150] any future colonia growth through demanding regulation and aggressive
enforcement. For example, a water and wastewater project cannot receive funding
if its home county has not adopted model subdivision rules.
n60 By these model rules, no new residential subdivision may be approved without
the developer providing access to water, sewage, and drainage before selling
n61 Now, counties have the power to cancel an already-approved subdivision if it
is likely to be developed without infrastructure, and to require replatting
n62 under the tougher new rules.
Thus, the new colonia regulatory package has two goals: stopping new growth and
modestly regularizing the physical configuration of existing settlements. The
government openly aims the no-growth component at colonias, and not at
regulating real estate development more generally. The tougher development
requirements apply only to colonias and only in the border region,
n64 leaving the rest of Texas free to pursue its historic hostility to land use
n65 Away from the border, rural development in Texas remains virtually
unregulated, and neither developers nor buyers of land and
housing in these areas bear the burden of higher costs associated with the new
II. The High Cost of Opportunity
Informality is a strategy by which people exploit themselves as a means of
creating economic opportunity not otherwise available. This is a disconcerting
concept, particularly when voiced in a celebratory, as opposed to critical,
tone. The lack of economic opportunity for which informality compensates often
results from discriminatory exclusion or marginalization. Women, immigrants,
and people of color, for example, are overrepresented in all sectors of the
informal economy because they are vulnerable to exclusion from the formal
Consistent with this pattern, non-whites, the poor, and immigrants dominate
[*151] the colonia population. Latina/os comprise 82% of colonia residents,
n67 compared to 32% of Texas residents and 12.5% of the nation.
n68 But this is not a foreign or undocumented population; to the contrary, 85% of
colonia residents are citizens and three quarters were born in the United
n69 Yet, many are first-or second-generation immigrants who retain strong ties to
The increase in accessibility of the
housing market due to colonia development is worth remarking: Eighty-five percent of
colonia households own their own homes,
n70 compared to a national home ownership rate of 66.8% for households of all
income levels, and 45.5% for Hispanics.
n71 When comparing similarly poor neighborhoods, the effect is even more striking:
Nationally, only 27% of very low income families with children own their own
By other measures, researchers have shown that colonias make
housing much more affordable to poor families: Only twenty percent of households in
areas of Texas with colonias face excessive
housing costs compared 23% in areas of the state without colonias.
n73 The effect is even greater among the extremely poor, with a smaller percentage
of extremely poor households in the border counties facing unaffordable
housing costs compared to similar families statewide. Sixty-seven percent of those
across the state earning less than $ 10,000 per year pay excessive
housing costs, but only 50% of equally poor households in the border counties with
concentrated colonia development bear a similar burden. And there are many more
extremely poor households in the border region: Only sixteen percent of Texas
households earn less than $ 10,000 per year, compared to 35% of households in
the border counties.
Colonias may exist because they create
housing opportunity, but they do so by avoiding regulation and all its protections.
Colonia land sales have been at once exploitative and accessible. Economically
marginal buyers can access affordable single-family
housing, as well as a means of financing that purchase, but only at high interest rates
and without basic consumer protections. Likewise, although land use regulation
and building codes would lift living conditions, the families who buy into
existing colonias could not afford that better-quality
housing and environment. Land costs in the new subdivisions developed
[*152] under the tough new requirements are so high, in fact, that many families
cannot invest in
housing construction after making monthly payments on the lot. As a result,
housing quality is declining further, with more trailers and fewer houses evident.
Informality creates opportunity, but also limits it. Houses not built to code
are not insurable, which exposes households to the threat of catastrophic loss.
The contract for deed arrangement makes ownership legally uncertain, as do the
irregular business practices of colonia developers. Finance institutions will
not make home equity loans in colonias due to the uncertainty over ownership,
which prevents self-builders from taking out loans against the property for
improvements, even when they have a long record of timely payment under the
contract for deed. Without clean title, many families put their life savings
into houses that cannot easily be sold except in intra-colonia land markets,
where prices will not match fair market value.
Home-ownership for the middle class in the United States is a
wealth-accumulating investment, and also a basis for credit. By leveraging
their investment, a middle-class family may move up into a better home or fund
a major life opportunity, such as a child's education, a small business, or a
secure retirement. Because of the legal uncertainty that currently accompanies
housing investment cannot serve the same functions for poor families.
III. Informality in the Global Context
The growth of informality is evident in the United States not only in
housing, but in other economic sectors as well. Social scientists have documented
substantial informal labor, production, and commerce in goods and services in
this country, including unlicensed street vendors,
n77 garment sweatshops,
[*153] fice-and house-cleaners,
n80 and home manufacturing enterprises.
Saskia Sassen contends the informal economy and the global economy are
n82 The dominant portrait of the global economy spotlights highly-skilled,
well-paid professionals and the liberation of capital, information, and
communication from the bounds of time and place. Sassen points out that the
vast infrastructure of material support for this new economy, a support
structure rooted in time and place, and serviced by a low-wage and increasingly
female and immigrant workforce, remains in the shadows. These workers represent
the globalization of labor at the lower end of the economy, according to
Sassen, a parallel to the globalization of capital in the economy's upper
As the social distance between high-and low-wage workers grows (and this trend
continues despite high rates of economic growth and wealth creation),
n84 we can expect informality to expand. Households cannot subsist on
below-poverty wages and must find ways to supplement their income, often by
working off-the-books. Similarly, households cannot afford goods and services
produced and sold in the formal economy, and so support a parallel economy of
street vendors, peddlers, and flea markets.
Housing, the single greatest consumer expense of families, will not escape this
economic squeeze, or the strategies for surviving it.
The poor are already mostly excluded from formal sector markets in
housing finance or construction, and hence from home ownership.
n85 Even rental markets have become mostly unaffordable
n86 to low-wage workers, particularly those with families. Despite a period of
strong economic growth and declining
[*154] unemployment in the late 1990s, the gap between the number of struggling
families and the number of rental units affordable to them grew.
n87 Only one of every three families at or below 30% of median income can find a
rental unit that is both available and affordable.
n88 Poor families pay an average of 58% of their income for
n89 Homelessness persists. In the year 2000, the U.S. Conference of Mayors
reported a 17% surge of demand for emergency shelter
housing, with families the population most affected.
n90 The causes include lack of affordable
housing and low-paying jobs.
n91 Where land is available, where household solidarity makes family labor
available, and where laws are loose enough or enforcement can be negotiated,
housing provides one solution.
Although the ethnographic and theoretical literature on informal labor,
production, and commerce inside the United States grows,
n92 researchers have hardly examined informal
n93 By contrast, since the 1970s scholars have vigorously investigated the
housing sector of major cities of the developing world. These studies presume,
explicitly or implicitly, that informal
housing production coincides with the particularities of the economy, society, and
politics in developing nations. In explaining the
"illegal city," scholars have pointed to (1) the limited resources of governments in
developing countries, (2) legal cultures in which rules are often seen as
symbolic or aspirational,
[*155] and enforcers routinely bend the rules, and (3) political systems that lack
meaningful accountability to the needs of the majority.
n94 By inference, then, the rich and democratic countries that dominate the world
economy and politics should be able to house their poor, enforce their laws,
and make everyone play by the same set of rules. In sum, the conditions for
informal settlement should not exist in the United States. This essay shows
housing does exist (and more than just marginally) in the United States. Thus, these
conventional explanations cannot be fully adequate.
Policymakers commonly explain the Texas colonias as a Mexican pattern of
settlement imported to the United States by Mexican immigrants. Although
Mexican immigrants and those living in the bi-cultural world of the border have
a distinct repertoire of survival strategies (one which includes familiarity
with the idea of self-help
housing), colonias did not emerge at the border because the border is culturally
n95 Instead, we find informal
housing at the border because this is the region of the United States most altered by
the force of globalization.
"Border urban areas are especially sensitive barometers of change because it is
here that prevailing methods of production and patterns of consumption take
The colonias are a structural response to the globalization of the U.S.
economy, and its parallel effects of diminishing wages for labor and
discouraging public investment in both
housing and income maintenance. As such, there is nothing either temporary or
aberrational about this
housing pattern. Kathleen Staudt suggests that the turn to the informal economy (what
"the Mexican solution") will not be confined to the border region in the coming years:
Globalization has enveloped the border area, but the demography and political
economy of the border may spread to the heartlands. With more [empirical]
studies ... , we will learn whether globalization, and its attendant
[*156] downsizing, insufficient job opportunities, and informality, will in fact
reproduce border life elsewhere. Is the
"Mexican solution"... taking hold beyond the border? I believe that it is, and that this solution
is a global one, as households respond to structural adjustment.
If informality increases and spreads, the problem of appropriate regulatory
response can no longer can be sidestepped. Many policy models exist. Mexico,
for example, has built its current
housing and social policy around informal
housing production, abandoning an earlier prohibitionist stance that treated these
settlements as illegal social ills to be eradicated. Mexico now not only
housing, but seeks to stimulate its production. National, state, and local governments
recognize the self-help settlements as a legitimate response to
housing shortages and as a productive form of economic investment. The Mexican state
offers regularization to such settlements in order to incorporate the
housing and its residents into the urban fabric and the society, economy, and polity.
n98 Many other countries of the developing world have put in place similar
Such a policy approach has multiple goals, including solving the
housing crisis for the working class, assuring social peace, and building political
support. Although ex post provision of legal title and basic services costs
more than systematically planned development, the mobilization of residents'
sweat equity and contribution of user fees, as well as the increase in property
values eventually reflected in tax revenues, ameliorate some of the expense of
housing has become so common in Mexico that it has generated political movements.
n101 Such activism by
"informals" ameliorates the disenfranchisement that living outside the law and accepted
norms can represent in societies like our own where such activity remains
clandestine for fear of prosecution, or stigmatized as criminal, marginal or
In this country, to date, only border-state lawmakers have faced the practical
as well as theoretical problem of whether to embrace or resist informal
housing on a large scale. In the 1980s and 1990s, Texas, in particular, lacked the
luxury of critical inquiry or extended debate before finding itself with an
housing sector so visible, so fast-growing, and with such urgent needs that legal and
policy response could not be postponed. Texas adopted a moratorium policy that
aimed to block the growth of any new colonias. The state also embarked on an
expensive, but nonetheless limited, remedial program to address the worst
physical deprivations of existing colonias. The overall thrust of the state's
policy was to position the colonias as a temporary problem, the equivalent of
large homeless shelters, and not permanent
housing for a permanent and growing low-wage labor force essential to the region's
One can easily criticize Texas's policy from a distance. But if the analysis of
the effects of globalization that underpins this essay holds true, state and
local governments throughout the country will have to confront the same policy
challenge. Legal theorists must begin to pay attention to informality.
IV. Informality and Law
Although economic need and global restructuring drive informality, it is a
direct product of the legal system. Its relationship to legality defines
informality. Informality does not naturally inhere in productive activities.
n102 This distinguishes informality from criminality: Criminality involves illegal
means to achieve illegal ends, such as drug trafficking; informality involves
illegal means to achieve legal ends, such as building a house or running a
But explanations for law's role in creating informality differ greatly.
Economists, led by Hernando De Soto and those in the United States influenced
by his work,
n103 explain informality as a product of irrational or oppressive governmental
regulation that makes entry into the formal market too burdensome or costly.
n104 Their solution is deregulation. Sociologists Manuel Castells, Alejandro
Portes, and Saskia Sassen, by contrast, see informality as a form of
exploitation of labor through the withdrawal of law from an arena of economic
activity. The state may either not regulate or not enforce regulations
[*158] on the books. But by permitting exploitation, the state implicitly encourages
informality and politically benefits from the resulting lower consumer costs
and privatized solution to basic social provision.
n105 Their solution is stepped-up regulation and enforcement. By either of these
explanations, informality is an indigenous response to the unproductive use of
n106 but the conflicting diagnoses of too much or too little law are not easily
Despite law's role in defining the informal sphere, few legal scholars in the
United States study informality.
n107 One explanation is the familiar problem of
"othering." The United States distances itself from development problems and solutions
such as informal
housing, as do its scholars. U.S. academics have somewhat revived law and development
studies focused on bringing western law to democraticizing countries around the
n108 This new attention to law's role in development is hardly a dialogue, however,
but instead a one-way transfer: The new scholarship expresses little sense that
the United States has much to learn from policies like regularization pioneered
in the developing world.
Further, informality by its nature tends to be covert, lessening the visibility
and hence the priority of the issue. Informality only becomes visible when the
number of informals grows or informals organize and make political claims for
recognition. No one can say with certainty how many people work, buy, and find
shelter within the informal economy in this country. Informals are further
hidden from the mainstream because they are disproportionately non-white,
immigrant, non-English speakers, and female. Taken together, these interrelated
marginalities obscure the general theoretical significance of informality and
allow scholars and policymakers to dismiss informality as ad hoc or random law
This may be too forgiving an assessment, however. If the fact of informality
"foreign," the phenomenon nonetheless poses familiar theoretical questions for law. Like
zoning, rent control, the implied warranty of habitability, and
housing discrimination, informal
housing exemplifies the ways in which law shapes the social production of urban space.
housing represents an instance of social conflict around the law of property and land
use analogous to familiar issues of exclusionary zoning,
gentrification, and environmental justice.
Yet legal scholars' neglect of informality implicates more than unfamiliarity
and invisibility. Put simply, informals have no natural political allies in the
law. Informals strive for legitimacy, meaning laws and policies that tolerate
and even facilitate their activity. But informality contradicts foundational
principles of legality and equality, and thus confounds legal scholars. On the
one hand, informality is an abuse of law. Wherever informality gains
legitimacy, it does so by using politics and social relations to get around
rules to which others must conform. On the other hand, informality is
exploitation and inequality. To legitimize informality is to accept substandard
conditions for some that violate generally applicable norms of dignity, health,
safety, or fairness. Unequal enforcement of law and double standards are
hallmarks of illegitimacy in our legal system. Thus, the greatest barriers to
engaging legal scholars with the issues of informality seem not so much
political as meta-political:
"You can't think there from here."
A. Turning Illegality into Legality
Consider the first claim that informality abuses lawfulness by tolerating
those who use private negotiation or collective political clout to get around
the law. From this perspective we could criticize regularization policies as
conferring unfair benefits. The
housing in the United States includes the cost of privately financing public
infrastructure and services, with developers fronting the capital and passing
the costs through to purchasers. Consumers pay for other public goods through
increased prices, notably those resulting from zoning and planning, albeit less
n110 But if some buyers purchase land and build houses without paying any of these
costs, and later use politics to gain access to them at taxpayer expense, have
"gamed" the system?
Public choice theorists might deem this rent-seeking.
n111 If informals become
[*160] highly organized, their political strategy may prevail over the large and
unorganized group of people who acquire
housing through conventional production and financing.
n112 In fact, some evidence of the effectiveness of political organization among
colonia residents in the legislative battles over colonia policy in Texas
Thus, what from one viewpoint might be an indication of democratic vigor - the
organization of the poor and excluded into a political movement of informals -
would, from this point of view, be a distortion of democracy. Engaging in
"self-help" that creates a social problem whose solution requires ex post public
intervention and public monies could be deemed strategic behavior. Where the
political system rewards strategic behavior, the general populace may become
cynical about lawfulness, and the law may thereby lose its legitimacy as a
principled and even-handed authority. Politicized enforcement invites not just
cynicism, but also corruption and a decline in voluntary compliance.
The conflict with legality need not be fatal, however. From doctrines like
adverse possession, the law has some experience with turning illegality into
legality without damaging its fundamental commitment to lawfulness. At the
least, informality seems to be a problem with which our legal tradition is
B. Legitimating Inequality
Perhaps the tolerance of exploitation and inequality intrinsic to informality
presents the more grave problem for legal scholars. Do regularization policies,
premised on legitimating informal
housing, give the law's imprimatur to that inequality? Will inequality, in turn, tend
Richard Delgado contends that policies predicated on tolerance of informality
housing production may be
"pragmatic" but can never be justified
"as a matter of social principle... . [Such] theory is explicitly predicated on
[*161] legal acceptance of otherness, difference, and perhaps inferiority."
n114 Directing his comments specifically to earlier work in which I urged caution
in adopting the conventional regulatory approaches to
housing quality in the colonias,
n115 Delgado compares this position to Plessy v. Ferguson.
That earlier work argued against standard building codes and instead for
minimal standards specifically designed to allow the self-building and
housing consolidation essential to the economic logic of informal
Unrealistically high standards will exclude low-income families... . But if
standards are too low, not only will health and safety be threatened, but any
housing constructed quickly will deteriorate and be abandoned, once again constricting
the supply of affordable
housing... . To build decent, affordable, and long-lasting
housing..., land use regulation must be stripped to its core.
That article also proposed requiring only progressive compliance, and tying
compliance to the credit and technical assistance necessary to make even these
minimal standards attainable for colonia residents:
Imposing a building code on already-existing colonia
housing should be progressive, mandating gradually higher construction standards over
time. The progressive building code must be paired with access to credit for
home improvement and technical assistance, as well as program incentives to
mobilize owners' sweat equity... . Over a period of years, informal and
substandard subdivisions gradually can be upgraded and regularized to meet
basic but conventional standards of safety, security, quality, and amenity
without dislocating the residents in place.
Countering these proposals, Delgado calls for
"equal enforcement of all
housing, zoning, and sanitation codes"
n119 in the colonias:
"We need governmental enforcement, formally administered, under universal
standards applicable to all."
n120 This means, he emphasizes,
"No tradeoffs or exceptions, in other words..., of the kind Larson is willing to
tolerate as a matter of pragmatic realism."
"Formality," he insists,
"tends to assure a better result, all other
[*162] things being equal."
This invocation of Plessy serves as a reminder that a flexible or gradual
regulatory standard can also be taken as a double standard,
n123 and that double standard interpreted as a symbol of unequal civil status,
indeed of a lesser humanity. Delgado argues that such standards for colonia
housing treat residents differently in ways that perpetuate their exclusion and
inferiority in both practical and symbolic ways. Not only will substandard
housing conditions persist in colonias because of such policies, he argues, but such
conditions will come to be considered
"acceptable because they are normal for them - for the people who live there."
This creates a slave-like class that can be hired for less: a positive
advantage for the factories. Eventually, no white firm - not even a nonracist
one - will hire a Mexican at full salary, even if he or she has a Ph.D. No
school board will consider a pupil-assignment scheme that mixes Mexican and
white kids. The idea simply won't come to mind... . The very existence of the
colonias enhances racial and social segregation of the rapidly growing Mexican
This critique of differential treatment focuses on law's expressive function,
specifically the messages of racial inferiority that the state's legitimation
housing will convey.
This debate over building codes in the colonias recapitulates long-standing
struggles within legal theory over the issue of equal versus different
treatment, or adherence to norms of formal versus substantive equality.
n126 To frame that larger discussion simply: People who are different can be
disadvantaged by treating them the same as others in contexts where they cannot
live up to the accepted norm; but they can also be disadvantaged if they are
treated as different in a way that reinforces traditional stereotypes or
perpetuates their position of exclusion or inferiority.
n127 In our exchange over building codes in the colonias,
[*163] Delgado advocates equal treatment and formal equality; I argue for special
treatment and substantive equality.
Joan Williams points out that what is cast as an argument over equal versus
special treatment is often really a disagreement over strategy rather than
fundamental principle. This clarification is helpful. Both Delgado and I agree
that everyone should be assured of decent
housing notwithstanding ability to pay. We even agree more on the specific issue of
housing quality standards than the rhetoric of our exchange suggests.
Delgado seems to concede that standard building codes are not appropriate for
the colonias. He clarifies that in calling for uniform standards applicable to
all, he does not mean
"exactly the same" standards are appropriate for all communities:
"But not as discrepant as now."
n128 Rather, his goal is basic or minimal standards, particularly for water and
"There should be written standards for such things, applied uniformly across the
board. Beverly Hills will choose to be far above those basic standards. But we
should make sure every community has water that meets the minimum level of
cleanliness and sufficiency. Sewers, too."
Although he specifically disclaims any
"tradeoffs or exceptions,"
n130 Delgado does not want to displace existing residents by implementing any new
housing standards or zoning laws. He would grandfather existing
housing and businesses, making only newcomers
"toe the line."
housing and zoning ordinances?" Giannina asked.
"You said you wanted formal fairness. Would you condemn two-thirds of the houses
because they are made of pieces of tin and plywood and don't meet the
housing code? And what about land-use zoning? If you prohibited people from operating
businesses out of their homes, you would have to close down all the auto repair
shops, laundries, and clothing piecework that go on now in the homes and
neighborhoods. Half the income of the colonias would dry up. You'd start out
doing the people a favor but end up harming them."
"I'd grandfather in existing businesses," Rodrigo answered,
"so that no one would be thrown out of work. As for newcomers, I'd make them toe
the line but offer loans and job assistance programs to enable them to set up
It is unclear if Delgado's
"grandfathering" solution is intended to apply to houses constructed in violation of building
codes as well as to businesses located in violation of zoning ordinances. I am
assuming that it does. But even if existing residents are exempted from new
regulatory standards, enforcing only against
"newcomers" does not answer the
housing affordability crisis for the
[*164] local population. Only by permitting colonias to grow, i.e., giving newcomers
the same opportunity existing residents have taken, can colonias ease the
housing crisis for the working poor of the region. Thus, Delgado and I may be close to
agreement on the issue of minimal standards, but we disagree on the broader
policy question whether to encourage or resist informal
housing. Is informal
housing a solution to, or only a symptom of, widening inequality?
The core of the disagreement may not be equal versus special treatment, but
rather political strategy, specifically, how to proceed if a fundamental change
of the existing order is not on the horizon. As Joan Williams puts the
"what to do when they are forced to settle (as they often must) for half a loaf."
n132 Our divergent answers depend crucially, I believe, on differing assessments of
the political culture within which we operate.
Delgado opts for vigilant adherence to the principles and political victories
that existing laws represent.
"We can enlarge the pie for the poor people of the colonias by standing with
them in a program of resistance and activism... .At some point, government will
n133 I opt for flexible alternatives to accommodate and build on, rather than
resist, informality. The current climate of growing and entrenched economic
inequality and diminished political will for government programs may be a
fundamental change of the terms of the social contract. I cannot support
holding poor families hostage to their need for shelter while we struggle to
force government to keep promises it no longer intends to honor.
C. Converging Critiques of Unattainable Standards
Similar debates over legal strategy and differing visions of the politically
possible occurred in the mid-1980s as progressive lawyers and activists sought
answers to the intensifying
housing crisis, symbolized then by the rise of urban homelessness. The major federal
subsidy for low-income
housing was, and remains today, the Section 8 Existing
n134 Section 8 gives recipients vouchers that allow them to rent private
housing at prevailing market rates. The recipient pays 30% of income toward
housing and the government subsidizes the balance of the rent.
Created in 1974, Congress never fully funded the Section 8 program, and thereby
never accepted the responsibility of assuring adequate
housing for every person without regard for ability to pay. Resistance to full funding
rests on political reluctance to intervene in the private
housing market, as well as pragmatic concerns about the cost of such an entitlement.
In turn, the costs of fully funding the entitlement reflect the level of need,
but also the cost of the
[*165] strict quality standards required for rental units to be eligible for the
subsidy. Without full funding, Section 8 houses some low-income people in
quality affordable shelter, but leaves most poor people with no
housing assistance at all. The government rations assistance by means of waiting lists
often tens and even hundreds of thousands of names long.
Various alternative policies could address this shortfall, including expanding
the supply of cheap
housing by reducing
housing quality standards.
n136 HUD revised Section 8
housing quality standards in the 1980s with respect to single-room occupancy (SRO)
n137 but left unchanged standards applied to rental
housing for families.
Lucie White has struggled with the related questions of how high quality
standards affect accessibility and affordability of legal services for the poor,
n138 and of child care for poor working families.
n139 Each setting presents the same quandary: Are proposals to step back from equal
enforcement of demanding regulatory standards a symptom of, rather than a
solution to, widening inequality?
White asks whether the legal services that society provides for low-income
people should be the same as, or different from, the legal services purchased
by high-income clients. Is endorsing the principle of equal legal services the
best means of promoting social equality?
"What do we think," she asks,
"of a social welfare regime that promotes equality and anti-subordination by
promising, but never delivering, an elite quality and level of social (and
legal) service to poor people through state bureaucratic arrangements?"
White recognizes that moving away from an equal standard represents a loss.
"Letting go of the goal of a uniform level of service for all persons carries
[*166] the message that we have given up on the struggle for equality, and have
resigned ourselves to living out our lives on an increasingly wealth-divided
n141 But she also sees potential gains through the political work of innovating
alternative strategies for assuring decent quality and affordability through
collaborative work with the communities to be served.
Letting go of the normative goal of a uniform level of service delivery for all
persons will force us to acknowledge the depth of the current trend toward
great wealth inequality. Letting go of that goal will force us to focus our
practical know-how, research, and policy on the challenges to survival and
well-being that are faced by those at the bottom. Letting go of that goal will
force us to give up on the illusion that we further, rather than undermine,
social equality by providing an elite level of services to a select few.
White examines the same questions in light of the growing demand for child
care services affordable to the low-income parents pressed into full-time wage
work by welfare reform.
n143 The existing policy consensus is that a professionalized work force and higher
licensing standards, combined with government subsidies, will best meet child
care needs. White suggests, instead, that we let go of rigid notions of
professionalism and regulation in favor of more creative and flexible, but yet
more uncertain, approaches for ensuring what she calls
"good enough" and
"reliably decent" care that poor workers can afford.
"Only such a shift in thinking," White contends,
"will help us to avoid catastrophic outcomes for the less affluent and powerful
White acknowledges the dangers of such a strategy:
"It will not be easy for us to give up on bold social democratic visions about
universal child care, or to make hard judgements about when loosening up on
licensing requirements or professional standards, for instance, contributes to
poor-quality care options for poor children."
n146 Yet, she concludes that a reluctance to experiment with alternatives to equal
"will ensure a huge gap between officially endorsed quality standard and
day-to-day practices in our least powerful communities, a gap that may become
increasingly hard to close."
[*167] In support of her claims, White observes that some progressive scholars of
health care delivery in the context of global wealth inequality also encourage
departure from equal and elite standards.
n148 These scholars challenge the idea that a single normative vision of
"equal health care" across the wealth spectrum is appropriate for current conditions. Such a
notion will fail in the short run because it will not guide practice, research,
and policy to address the urgent health needs of low income populations. And it
will fail in the long-term because, rather than helping move society toward
greater institutional equality, a norm of health care service implicitly based
on elite practices and institutions will perpetuate
"the bifurcated institutional practices that construct and maintain societal
Taken together, these critiques challenge the existing progressive consensus on
regulation across a broad range of social welfare settings, from
housing to legal services, child care, and health care. The premise of these
converging critiques is that the current trend toward great wealth inequality
and limited governmental responsibility for basic social provision is enduring
and fundamental. Where the price for maintaining equal and elite standards is
rationing of essential goods and services, these critics suggest we consider
revising those standards to meet what White calls the
"exploding universe of need."
This critical skepticism of conventional regulatory strategies is pragmatic but
also normative, grounded in the recognition that existing standards were not
fashioned by or for poor communities, and may be inappropriate for their
circumstances or contrary to their values. Rather than generalizing from elite
institutions and practices in the interest of promoting an abstract idea of
equality, White, for example, argues:
We may be better off endorsing the idea that the social needs of disfranchised
groups should be addressed sui generis, in ways that reflect their own
experiences of need, their embedded historical and cultural realities, the
societal power landscapes from their perspectives, their capacities, and their
No one disagrees that much would be lost were we to abandon the aspirational
claims to social equality embodied in the commitment to universal standards.
The ideal of law that equal standards evokes, by which the role of the state is
to manage society according to universal ideals, is counterposed against the
vision of these critical skeptics, in which standards are negotiated through
the medium of practice and social relations at the local level, and by which
law's role is
"to support the public by adjusting policies to reinforce observed
[*168] practice on the ground."
n152 Delgado recognizes this when he comments that my argument for accommodating
rather than resisting informality is
"trying to adjust the people to their situation rather than the other way around."
It is an article of faith, cultivated in U.S.-trained lawyers as part of their
history and identity, that law should lead the society rather than follow, that
law is an engine of social change. Equality and liberty have been the key
arenas of this vision of law as ahead of or against society. Racial
desegregation, voting rights, gender equality, and reproductive rights are the
issues most often cited as evidence that law can and should move society
forward, in advance of majority or popular sentiment.
This distinctly American vision of progressive lawmaking has as its central
"the alteration, the deviation, and the transformation" of social practice.
n155 Law enforces an aspirational standard against the majority's will and
"observed practice on the ground." The hope is that those the state coerces to accept the new standard in one
generation will grow to accept and even welcome the change in the next.
Children educated in the integrated schools of Brown v. Board of Education will
grow up accepting a multi-racial public world as normal, and perhaps even
This is an avowedly progressive, but also an elitist, model of law and its
relationship to social change. Thus, we find the countering perspective that
law should conform closely to observed practices of society explicitly voiced
in post-colonial societies.
n156 Where lawmaking leads society, the voices of the elite empowered to speak
through law (whether in litigation, legislation, or policy debate) necessarily
will be heard more clearly than those whose voices are expressed in the
constitution of everyday life. This is true no matter how laudable or
progressive the purposes behind the aspirational standard being advanced.
In between these competing views of law leading and law following, can
[*169] we retain the aspirational ambition of law without sacrificing the poor to
elite dreams? Can law mobilize social change without unfairly burdening those
for whom the aspirational standard is currently unattainable? In describing her
"aspirational" law, Robin West says
"it exists, very generally, to construct a bridge... between those present
aspirations and our future, not between our present predicaments and our past."
If we look to our past, we find the exhausted (and exhausting) debate between
strategies of equal or special treatment, with no evident resolution.
n158 The future looks somber because economic privation intensifies the effects of
unattainable standards, even as government downscales its redistributive
efforts as well as its faith in social progress. Under these conditions of
constraint, can legal strategies maintain law's aspirational force without
recreating its past predicaments of unattainable standards?
"Take What the Community Is Doing and Magnify It, Extend It."
Looking to the bottom - adopting the perspective of those who have seen and
felt the falsity of the liberal promise - can assist critical scholars in the
task of fathoming the phenomenology of law and defining the elements of justice.
Scholars often overlook the strategic and theoretical resources of people
engaged in the struggle about which the scholar thinks and prescribes. This is
as true of equality theory as any other area of legal theory. Mari Matsuda
urges critical legal theorists to attend closely to the perspectives of people
she calls by the Gramscian term,
n161 Such people have lives shaped by the oppression that critical legal theory
seeks to address, have engaged in the search for critical self-knowledge
through close examination of their own circumstances, and have made a politics
of the knowledge gained by working with others in organized movements for
"There is a standing concept in movements for social change," she writes.
"One needs to ask who has the real interest and the most information."
n163 This is an argument for linking abstract theory to concrete experience, and
also a reason to restore empiricism as ordinary
[*170] scholarly practice.
n164 But more importantly, Matsuda argues that we must treat such indigenous actors
as theorists, studying the ways they have interpreted their experiences, and
respecting the strategy and choices behind the politics they have made of their
Matsuda observes that this method often leads to concepts of law
"radically different from those generated at the top."
Those who are oppressed in the present world can speak most eloquently of a
better one. Their language will not be abstract, detached or inaccessible;
their program will not be undefined. They will advance clear ideas about the
next step to a better world. The experience of struggling... has taught much
about struggle, about how real people can rise up, look power in the eye and
turn it around.
How do the colonia's own theorists analyze the political question of building
codes and self-builders, and more broadly whether informal
housing is a solution to, or a symptom of, inequality? Many grassroots groups oppose
adoption of building codes in the counties.
n167 When Texas was crafting sweeping colonia legislation for introduction in the
1995 legislative session, for example, Attorney General Dan Morales floated a
provision that would have given the border counties the power to adopt building
codes. The provision was part of Morales's determined efforts to publicize and
eradicate substandard conditions in the colonias. Self-help groups all along
the border region organized as Iniciativa Frontera,
n168 and allied with statewide officials, experts, and non-governmental
organizations in the Border Coalition for Low-Income
Housing, to educate legislators and state policymakers on their opposition.
n169 Colonia residents recall riding buses from the border to Austin in order to
confront state officials on the issue.
In 2001, the Texas Legislature again came close to enacting legislation that
would have empowered counties to regulate building standards. The bill's
explicitly described purpose was
"to prevent the proliferation of colonias and substandard
n170 In hearings, the bill sponsor, Sen. Eddie Lucio, described the legislation as
"to prevent proliferation of colonias, maintain reasonable standards, and
provide decent quality of
n171 Significantly, Sen. Lucio represents the border and has often been a
progressive advocate for colonia interests. Ironically, his bill was defeated
at the last moment by unexpected opposition from conservative property rights
groups opposed to land use regulation for any purpose.
Conventional building codes cannot be viewed as neutral standards either in
theory or practice. Building codes control new construction and remodeling of
n173 Today's building codes are descended from those first enacted in the early
twentieth century when Progressive reformers of the tenement house movement
pushed for basic sanitation standards. Thus, codes originated as politically
progressive and humanitarian reform measures.
But the modern codes in force in virtually every jurisdiction of this country
establish standards that far exceed what is required for health and safety, as
explained by their genealogy. Model codes shape existing codes. Trade groups
play an active role in writing and revising model codes. When the federal
government entered the
housing finance arena through its insurance programs, inclusion of building standards
in the federal underwriting process made these model codes the template for
n175 Most jurisdictions adopt one or more of the handful of model codes, in whole
or in part, often simply by reference.
These codes protect health and safety but also endorse middle class values
housing configuration, appearance, and amenity. Some local jurisdictions further
heighten standards for explicitly exclusionary purposes. By requiring
[*172] high-skill labor, costly materials, and labor-intensive techniques, codes
close out self-builders and advance the economic interests of the construction
and building materials industries and of labor unions.
n177 Thus, the model code process is a confluence of economic interests for whom
affordability is not a core policy goal.
David Arizmendi, a long-time community organizer and a nonprofit provider of
housing in the Hidalgo County colonias, believes
"you cannot impose
housing quality standards on people without giving them the resources to meet them."
n178 No one knows what percentage of existing colonia houses meet building codes,
but a survey in Cameron Park, an older, relatively well-consolidated colonia
near Brownsville, Texas, found that four-fifths of the
housing did not meet code standards. Just 184 of 1,088 existing homes met code
standards. Of the others, 558 were substandard and 346 were dilapidated and
n179 Cameron Park almost certainly has better quality
housing than other colonias because of its age and consequent degree of
housing consolidation, and because of significant investment in infrastructure and
housing by government and nongovernmental organizations. The Cameron Park example
suggests that virtually all colonia houses would fail to comply with code
standards, many would be seriously deficient, and a significant portion would
have to be razed and rebuilt. Though one colonia provides admittedly slim
evidence, it suggests most colonia
housing will fail to meet prevailing standards. Even if existing structures were
grandfathered, code standards would rule out the typical construction practices
for any new
housing, including new or incomplete construction on already-purchased lots.
In sum, prevailing building standards would make it illegal for families to
build affordable colonia
housing. And if families tried to build, they would be targeted disproportionately by
such standards for enforcement and penalty. Such codes would have the same
practical effect as making informal
housing outright illegal.
Blanca Juarez, colonia resident and founder of Colonias Unidas, a self-help
group in Starr County, tries to educate policymakers in the debate over
building codes by moving from the abstract to the concrete:
"It's a house or no house," she says.
"Do you honestly believe these people will leave their houses just because they
aren't safe or healthy?"
n180 In 1999, Juarez testified before the Texas Legislature in support of a bill
allowing residents to hook up to available utility services even if they lived
in an illegal or substandard colonia. She recalls the testimony on that day as
They were saying
"those people need to get out of those colonias, they are not livable." Why would people leave their houses just because they don't have electricity
and water? Where would they live, under a bridge? On balance, no water or
electricity is better than no house.
Juarez anticipates and is careful to dispel any beliefs that colonia residents
are ignorant or insensitive to tradeoffs their condition forces on them.
It isn't that they don't want to have a healthy life, and it isn't that they
are used to living without anything. Like they keep saying,
"Oh, they're from Mexico, and they're used to living without water or
electricity." Well not all people in Mexico live with nothing, and not everyone in a colonia
is from Mexico.
Those who live in existing colonias, and the many who would buy into such
settlements if development opened up again, face a
"double bind" that is a ubiquitous feature of oppression. Marilyn Frye describes the double
"situations in which options are reduced to a very few and all of them expose
one to penalty."
n183 Because there is no good choice (only better and worse choices), the double
bind does not easily lend itself to arguments of principle or
"either/or" solutions. Juarez captures the dilemma with characteristic immediacy:
People here want good houses. I would like to live next to Bill Clinton, but
the truth is that I can't, I just can't. So I am going to build whatever I can.
I am not living under a bridge, and I am not asking the government to give me a
house. I am just doing the best that I can to make a house for my children and
to live as good a life as I can.
For Juarez and Arizmendi, solutions to colonias problems lie in helping
residents rather than penalizing them for their living conditions. In the
absence of political will to resolve the double bind, these local theorists
believe that building up from the
"homemade solutions" of self-builders offers the best solution.
"The answer will have to come from the community," Arizmendi says.
"You have to take what the community is doing and magnify it, extend it."
The community has responded to the lack of affordable
housing by building colonias. Thus, what might seem contradictory or paradoxical from
a scholar's perspective - to support self-help
housing knowing it leads to substandard conditions - is pragmatic, coherent, and
strategic from the perspective of the colonia's own theorists. As Matsuda
"Apparent logical inconsistency in intellectual argument
[*174] is not inconsistency in the real world. Intellectual arguments may be
paradoxical; real experiences cannot be."
Consistent with the view that
"you have to take what the community is doing and magnify it, extend it," Arizmendi now heads a
housing project grounded in the principle of self-help and self-building. Proyecto
n187 coordinates self-help homebuilding in the colonias of Hidalgo County, near
McAllen, Texas. Collectives of householders build 900 square-foot,
three-bedroom ranch houses of conventional frame construction that are
affordable to families with very low incomes. Proyecto Azteca requires a family
to commit a member to work full-time for eight weeks with a collective work
team that builds a house for each family under the guidance of skilled
builders. This commitment of sweat equity, combined with substantial subsidies
from the federal government and private foundations, allows Proyecto Azteca to
charge each family about $ 16,000 for the completed house, with a family's
monthly mortgage payments ranging from $ 90 to $ 150.
Proyecto's houses meet minimum construction standards and are designed for
sturdiness and function. The houses also contain many design touches and small
"We want it to feel like your dream house," says Arizmendi.
n190 This innovative model of
housing provision has garnered national awards and been replicated elsewhere. Yet the
model depends upon subsidies for land and building materials, and therefore on
significant and continued funding from government and private foundations. The
unsubsidized cost of constructing Proyecto's basic houses would be $ 55,000,
even factoring in the labor contributed by the self-builders.
n191 This price exceeds the means of the colonia population.
Although production has doubled in the past two years, Proyecto has built fewer
than 300 houses in ten years.
n192 The organization
"rations" through a waiting list many thousands of names long (just as public
housing programs do), and by policy decisions to concentrate house construction in
particular colonias as part of a broader community development agenda.
n193 Proyecto Azteca is committed to facilitating self-help development rather than
resisting it, but the organization can barely begin to fill the need.
So what is happening to the population unable to afford
housing built in accordance with the strict new standards imposed by Texas law? Local
observers note one perverse effect of the 1995 moratorium on new colonias is a
housing quality. Developers have created few new subdivisions under the tougher
development rules because the required infrastructure has markedly increased
the price of a lot. With land prices higher, those who do buy into the new,
fully-serviced subdivisions have little left over to invest in
housing construction or consolidation. Those who cannot afford lots in the new
subdivisions either rent or live on internally subdivided lots in older
colonias. Without the incentive of ownership, the renters do not build
n194 Those who buy the tiny lots carved out by internal subdivision suffer
overcrowding and may lack sufficient space to replace a trailer with a house,
or to construct a safe septic system. As a result of the 1995 law, the number
of dilapidated trailers in both older and new colonias has increased.
n195 Some families are living on raw land in unplatted subdivisions without access
to electricity or water; because such developments are not platted, under
current law, they may never get access to these basic services.
With this evidence before us, the debate over building codes in the colonias
can no longer be an abstract question of equality theory. Attention to the
voices and choices of community leaders offers no single answer, as activists
speak in the language of
"both/and" rather than
"People here want good houses... but the truth is that [they] can't [buy a good
house]... . So I am going to build whatever I can."
"You cannot impose
housing quality standards on people without giving them the resources to meet them."
n198 The translation of these insights into legal policy must respect and not
attempt to erase the tension between those multivocal positions. Matsuda argues
that theorists can make claims for justice, but they can be proved right or
wrong only through pragmatic method,
"through intuition, guided by reason, tested against the lives of real people."
n199 Matsuda reminds us,
"At the end of our theoretical struggle is someone's life."
VI. Regulating Under Conditions of Extreme Economic Constraint
Deregulation, as well as regulation as we know it, is a simplified
[*176] that will not increase affordability or quality of
housing for the poor. Neither conventional strategy will extend law's reach so as to
integrate informal economic activity. Eliminating government regulation removes
a powerful tool for collective action in the struggle for economic justice.
Government enforcement of unattainable standards burdens those already on the
margins and increases reliance on informal solutions. How can law facilitate
housing for populations under conditions of extreme economic constraint without
mandating unattainable standards?
Legislatures could enact laws for purely symbolic purposes, with no intent to
require compliance. This is not an accepted use of law within the United States
(although it occurs in practice). Within our legal tradition, where law does
not demand compliance, the rule of law symbolically and publicly falters. From
the perspective of a rule of law regime characteristic of a liberal democracy,
law's effectiveness depends on its enforcement. Laws exist to regulate conduct
and not for symbolic uses.
n201 By longstanding norms of judicial power, a court that is unable to prescribe
an adequate remedy will refuse to hear a case.
Likewise, U.S. law contains few mechanisms for delayed or gradual enforcement
based on the recognition of the immediate unattainability of the legal
standard. When the U.S. Supreme Court declared racial segregation of the public
schools to be illegal in Brown v. Board of Education, and then imposed remedies
"all deliberate speed" in compliance, the Court undermined its own ruling.
Where compliance places an economic burden on a regulated party who lacks the
resources to comply, is there any alternative to enforcement consistent
[*177] with the rule of law? Where the remedy is equitable (as an injunction), a
court may delay relief under some circumstances. Typically, the delay is short
and its availability is dependent on the equities of the case at hand.
n204 Such an equitable remedy could not be fashioned for general application in the
case of the colonias. Yet, the acceptance of equitable flexibility indicates
our legal tradition's recognition of the problem of unattainable standards,
particularly when the law imposes positive economic obligations.
Sociological observers of small claims court note that judges sometimes
manipulate continuances in order to enable parties to work things out, and
sometimes to allow defendants to come up with funds to pay off landlords or
creditors, thereby avoiding the harsh and final remedy of eviction or
n205 In the executive branch, prosecutorial discretion allows law enforcers to
decline to require compliance. Similarly, by the
"law on the ground" in force in large U.S. cities, regulators systematically ignore
housing code violations and occupancy limit violations that might take scarce
housing out of service. But all these discretionary mechanisms preserve the illegality
of the underlying conduct and, thus, the vulnerability of the violator. So,
too, neither formal nor informal exercises of enforcement discretion use law to
bring about aspirational changes in
Commentators have argued for the creation of gradual or flexible forms of
regulation that can bring informal economic activities
"within the regulatory framework while minimizing costs to entrepreneurs."
Policies ... could be designed so as to induce an
"upgrading" of informal activities by bringing these activities within the regulatory
framework while minimizing costs to entrepreneurs. Upgrading is likely to
demand greater flexibility in the implementation of existing codes and
acknowledgment by city officials that compliance may require several phases.
Lower thresholds of regulatory compliance would be applied to new, small-scale
businesses in low-income communities than to well-established businesses that
have had an opportunity to recover start-up costs.
But the legal form for this flexibility remains unspecified.
To find a model for enforcing the
"progressive realization" of a currently unattainable legal standard, we must look to international
human rights law.
n208 The International Covenant on Economic, Social and Cultural Rights ("Economic
n209 recognizes the human right of all people to
"an adequate standard of living ... including adequate food, clothing and
housing, and to the continuous improvement of living conditions."
n210 By ratifying the Economic Covenant, parties undertake an obligation to assure
their people this basic sustenance.
One hundred twenty-seven nations have signed the Economic Covenant, including
many nations in which most of the people lack adequate
n211 Does this mean that the positive rights guaranteed by the Economic Covenant
are not really part of international law at all, but merely symbolic
expressions of aspiration?
Indeed, the Economic Covenant does not guarantee immediate provision of
housing to all persons. As a practical matter, economic rights cannot be implemented
in all the same ways as civil and political rights, and the Economic Covenant
n212 The Economic Covenant requires these rights to be
"progressively ... realized ... to the maximum of ... available [governmental]
resources." Thus, the Economic Covenant takes resource constraints into account; the rich
nation must provide more than the poor one.
n213 In many instances, citizens will only gradually realize the right relative to
the nation's economic resources.
Furthermore, the Economic Covenant does not impose universal standards for
measuring compliance. States parties to the agreement may have differing
standards for judging the adequacy of shelter, and the right may be guaranteed
in a wide variety of political settings with no particular steps mandated for
its full realization.
By this model, there are no immediately enforceable rights to full compliance
from all regulated parties. Some commentators have argued that these measures
of enforceability are the markers of a legal right, and they therefore regard
the commitment to progressive realization of the Economic Covenant rights as
something less than law.
n214 Since 1981, the United States has maintained
[*179] that economic, social and cultural rights
"belong in a qualitatively different category from other rights, that they
should not be seen as rights but as goals of economic and social policy."
In general, negative rights provide the norm of legal rules in our tradition
rather than positive rights. Negative rights prohibit the state from doing
something, such as denying benefits without due process, or restricting freedom
of religion. Positive rights generally refer to rights imposing an affirmative
obligation on the state. The approaches governments use to assure these two
kinds of rights generally differ, with programs of distribution and
redistribution used for positive rights and programs of enforcement employed
for negative rights.
Yet, if the law focuses on enforceability generally, as opposed to immediate
and full compliance, the principle of progressive realization and the
requirement of commitment of maximum available resources do bind parties
equally and in legally enforceable ways. The principle of progressivity
requires that states parties create programs and policies to address the
housing need, and make steady progress over time to increase access to adequate
housing. These standards obligate equally. The requirement of progress consistent with
available resources imposes an
"immediate and readily identifiable obligation upon states parties," permits measurement, and hence allows for meaningful enforcement.
The United Nations monitors compliance with the Economic Covenant. The Economic
Covenant obliges parties in annual seasons to submit reports to the Secretary
General regarding the progress of implementation. Individuals cannot petition
n217 (although this right exists for civil and political rights), and the United
Nations lacks the authority for independent investigation or sanction against
Because of this dearth of enforcement powers, as much as the positive rights
critique, skeptics have concluded that the Economic Covenant is weak.
Nonetheless, if the progressive realization model were adapted for domestic
regulatory purposes, effective enforcement mechanisms could be adopted.
"Progressive realization" provides a regulatory conception for imposing aspirational standards while
calibrating compliance obligations to available economic resources. Adapting
this legal technology for a domestic regulatory regime, government may
evenhandedly include the poorest colonia and Beverly
n218 under a universal
housing standard, obliging compliance from residents in each setting according to
their realistic capacity to meet the standard.
The progressive realization model understands equality and legality differently
than the conventional approaches described above.
n219 The model respects formal equality by establishing a single legal standard of
housing, and measuring compliance from each person by the single standard of commitment
of maximum available resources. The model respects legality because compliance
is always possible under the
"maximum available resources" rule. Finally, the model marries aspiration and attainability by committing
both government and people to a common norm of decent
housing for all persons, and requiring continuing progress toward the standard by the
"progressive realization" principle. Such an approach would respect foundational commitments of the
legal tradition, and preserve law's role as a
"bridge... between those present aspirations and our future."
A domestic program for regulating
housing quality and development built around the progressive realization of standards
would better balance the regulatory burden on diverse populations, the public
interest in adequate
housing, and an aspirational commitment to elevating living standards in pursuit of
n221 Retooling a standard from international law for domestic application fits with
the globalized character of the social practices present in the colonias. And
to the extent that informality is linked more broadly to globalization, any
national effort to find regulatory tools appropriate to its character should
sensibly draw on international experiences, practices, and ideas. When
governments impose positive economic obligations on themselves, they do so by a
mechanism that incorporates attainability as a limiting principle. Where states
are the regulated parties, the ideal of the equality of nations means they
respect realistic differences among themselves in terms of resources available
for compliance. Is there any reason that domestic government should not limit
its powers in the same ways and extend the same respect for real difference
when it is dealing not with a peer nation, but instead with its people?
To encourage compliance with modified regulations and enforcement practices,
local regulators can offer self-builders technical and financial assistance as
part of the long-term upgrading process. At any point when the household seeks
governmental assistance, the regulatory structure may assess whether it has met
the dual compliance obligations of continuous progress toward the
[*181] standard and the commitment of maximum available household resources. By this
approach, enforcement becomes a cooperative effort at progress rather than a
punishment of the poor for where they live or the limits of their resources.
Linked to such a comprehensive program of regularization, progressive
realization places law behind, rather than against the activities of informals,
without sacrificing legality or equality. Equality means that the government
and people recognize a single standard of
housing adequacy and commit to undertake progressive steps to realize it. Legality
means that compliance is relative to resources, and progress toward the
standard is always required, even though full realization may never be achieved.
Viewed from the perspectives of legality and equality, the subject of
informality is a minefield. Even so, lawyers and legal scholars must take the
lead in formulating policy responses to informality. As this essay argues,
informality is a phenomenon defined not just by legal standards, regulation
policy, and enforcement practice, but importantly by law's internal ideals.
By my skeptical claims in this essay about a conflict of interest between legal
ideals and informal realities, I do not wish to discourage constructive
engagement by legal scholars. Indeed, I hope to encourage and guide it.
Particularly within critical jurisprudential traditions, there exist
theoretical and methodological approaches that may allow engaged scholars to
think a way through the confounding obstacles of our shared legal culture.
In particular, theorizing about informality must build from the particular
before reaching for the universal. Generalized and abstract concerns about
legality and equality must be replaced by concrete engagement with the
historical and social particularities of the informal sector as it exists in
our midst. Theory that explains and predicts, and policy proposals that work,
will stem from concrete social investigation and engagement; conversely, those
that fail - or worse, do active harm - will likely stem from preconceived
ideological conceptions. As such, informality takes on the force of a lived
critique of our existing understandings as legal scholars.
To investigate the economic, social, and political contexts within which
informality develops and spreads, legal scholars must use interdisciplinary
tools, particularly those of the social sciences, including history, sociology,
anthropology, economics, geography, cultural and area studies. In this essay, I
have focused on the sociology and political economy of globalization as it
housing strategies of poor, mostly Latina/o, working populations at the U.S.-Mexico
border. Out of the effort to find some form by which law can engage informality
on its own terms emerges the
"progressive realization" model. It is an alternative model of the relationship between law and society
that, not coincidentally, corresponds to the analysis and strategic choices of
[*182] in the struggle for survival in the colonias.
Within this particular socio-geography of economic restructuring, I have
argued, we can find threads of workable resistance strategies in the face of
globalization. Informality is proving an avenue of economic survival and even
wealth-creation for some workers hard-pressed by the new mandates of cheap
labor and privatized provision of the necessities of life.
Those threads snap easily, however, under the force of misguided law and its
enforcement. Social investigation can tell the story, and social theory can
connect it to larger structures of politics and economy. It is legal thinkers,
however, who must bring that theory down to the ground in the shape of policy
frameworks and specific regulatory interventions.
n1. Oscar Martinez, Troublesome Border 2 (1988).
n2. To repeat the assessment is not to accept it uncritically.
n3. Pocho is also used by Spanish speakers in the United States to describe a
Mexican-American who is overly Americanized in speech and culture. Chad
Richardson, Batos, Bolillos, Pochos,
& Pelados: Class and Culture on the South Texas Border 2 (1999).
"Americans are largely unaware that Mexicans also view their northern border
with concern, and at times even alarm." Martinez, supra note 1, at 1. Border communities, such as Ciudad Juarez and
Tijuana have long been criticized from Mexico City and the interior for their
close ties to the United States. Id.
n5. Margaret E. Montoya, Lines of Demarcation in a Town Called Frontera: A Review
of John Sayles' Movie Lone Star,
27 N.M. L. Rev. 223, 223 (1997).
n6. The popular understanding of globalization tends to emphasize its economic
impact, even to the point of translating globalization as the worldwide
ascendency of capitalism. See, e.g., Thomas Friedman, The Lexus and the Olive
Tree 308 (1999) ("With the end of the Cold War, globalization is globalizing Anglo-American-style
capitalism") See also Pierre Bourdieu, Acts of Resistance: Against the Tyranny of the
Market 34-38 (1998) (noting that the idea of globalization
"ratifies and glorifies the reign of what are called financial markets, in other
words the return of a kind of radical capitalism, with no other law than that
of maximum profit, an unfettered capitalism without any disguise, but
rationalized, pushed to the limit of its economic efficacy by the introduction
of modern forms of domination.") Other definitions, however, reflect the wide-ranging expressions of
globalization in political, normative, social, and cultural realms. David Held
et al., Global Transformations: Politics, Economics and Culture (1999) defines
globalization as fundamental change in the terms and context of social
"a process (or set of processes) which embodies a transformation in the spatial
organization of social relations and transactions - assessed in terms of their
extensity, intensity, velocity and impact - generating transcontinental or
interregional flows and networks of activity, interaction, and the exercise of
power." Id. at 16. Anthony Giddens characterizes globalization processes as
"the intensification of worldwide social relations which link distant localities
in such a way that local happenings are shaped by events occurring many miles
away and vice versa." The Consequences of Modernity 64 (1990). Boaventura de Sousa Santos's work
emphasizes globalization's local effects. See Toward a New Common Sense: Law,
Science and Politics in the Paradigmatic Transition 258-68 (1995).
n7. Boaventura de Sousa Santos, Toward a Multicultural Conception of Human Rights,
18 Zeitschrift fur Rechtssoziologie 1, 4-5 (1997). An expanded version of this
essay under the same title is found in Moral Imperialism: A Critical Anthology
(Berta E. Hernandez-Truyol, ed., forthcoming 2001).
n8. Other localized globalisms are deforestations and depletion of natural
resources to pay for the foreign debt; touristic use of historical treasures,
wildlife, religious sites or ceremonies, and folk arts and crafts; ecological
dumping; conversion of sustainable agriculture into export agriculture as part
of structural adjustment; and the ethnicization of the workplace. Id.
n10. Santos is invoking world systems theory, which divides the world into core and
peripheral areas. World systems theory argues that peripheral areas are drawn
into modern economic relations with the core on terms that favor the core. See
Immanuel Wallerstein, The Capitalist World-Economy 162 (1979).
n11. See infra text accompanying notes 14-16. By comparison, the northern border of
Mexico is a relatively prosperous region of that country.
n12. Nearly all people at the border are congregated in twin cities, urban areas
that are physically contiguous to one another on the opposite sides of the
boundary line. Roberto Ham-Chande
& John R. Weeks, A Demographic Perspective of the U.S.-Mexico Border, in
Demographic Dynamics of the U.S.-Mexico Border at 1, 9 (John R. Weeks
& Roberto Ham-Chande eds.,1992).
n13. U.S. Census Bureau, State and County Quick Facts (2000), available at
http://www.census.gov/servlet/BasicFactServlet (Sept. 27, 2001) [hereinafter
n14. In Cameron County (Brownsville), 35.3% of people and 45.2% of children are in
poverty. Id. In Hidalgo County (McAllen), 37.6% of people and 47.9% of children
are in poverty. Id. In Starr County (Rio Grande City), 46.7% of people and
56.4% of children are in poverty. Id. In Webb County (Laredo), 32.6% of people
and 42.3% of children are in poverty. Id. In El Paso County (El Paso), 27.8% of
people and 38.6% of children are in poverty. Id. These are 1997 model-based
estimates, the most recent available.
n16. Id. Nineteen percent of the nation's children are in poverty. Id.
n17. See Lyndon B. Johnson School of Public Affairs, Colonia
Housing and Infrastructure, Current Characteristics and Future Needs, Policy Research
Project Report No. 124, at 10 (1997) [hereinafter Colonia
Housing and Infrastructure].
n18. The phrase comes from Bordering the Future, Report of Texas State Comptroller
of Public Accounts (July 1998), available at
n19. See the epigraph by Oscar Martinez. Supra note 1 and accompanying text.
n20. The word in Spanish means simply
"neighborhood," but has acquired the regional meaning described in the text. The term now also
has a legal definition that emphasizes border location and substandard
Tex. Gov't Code Ann. 775.001(2) (Vernon Supp. 2001);
Tex. Water Code Ann. 17.921(1) (Vernon 1999).
n21. This Essay focuses on informal
housing settlements inside the United States. There are also thousands of such
settlements along the Mexican side of the border. Augusta Dwyer, On the Line:
Life on the U.S.-Mexican Border 2-5, 49-65 (1994). See generally Luis Alberto
Urrea, Across the Wire: Life and Hard Times on the Mexican Border (1993); Luis
Alberto Urrea, By the Lake of Sleeping Children: The Secret Life of the Mexican
n22. There are 1495 officially designated colonias within Texas. Tex. Water Dev.
Bd., Water and Wastewater Survey of Economically Distressed Areas - December
1996, available at http://www.tdwb.state.tx.us [hereinafter TDWB Report -
December 1996]. The U.S. government has identified about 15 other colonias in Do<tild n>a Ana County, New Mexico, part of the El Paso-Las Cruces metropolitan region.
U.S. General Accounting Office, GAO/RCED-91-37, Rural Development: Problems and
Progress of Colonia Subdivisions Near Mexico Border 1 (Nov. 1990) [hereinafter
n23. 1 Colonia
Housing and Infrastructure, supra note 17, at 1.
n24. The definition used here is supported by leading theorists of informality,
see, e.g., Manuel Castells
& Alejandro Portes, World Underneath: The Origins, Dynamics, and the Effects of
the Informal Economy, in The Informal Economy: Studies in Advanced and Less
Developed Countries 3, 12 (Alejandro Portes
& Manuel Castells et al. eds., 1989) [hereinafter The Informal Economy].
n25. William A. Doebele, Land Policy, in Shelter, Settlement, and Development 110,
127 (Lloyd Rodwin, ed., 1987) (citing United Nations estimates of 40% in 1980).
n26. Edesio Fernandes
& Ann Varley, Law, the City and Citizenship in Developing Countries: An
Introduction, in Illegal Cities: Law and Urban Change in Developing Countries
3, 3 (Edesio Fernandes
& Ann Varley, eds. 1998) [hereinafter Illegal Cities] (citing A. Duran-Lasserve
& V. Clerc, Regularization and Integration of Irregular Settlements: Lessons
from Experience (World Bank, UMP Working Paper No. 6 (1996)).
n27. Adapted from a typology developed in Manuel Castells, The City and the
Grassroots: A Cross-Cultural Theory of Urban Social Movements 188-89 (1983).
n28. Stuart Henry, The Political Economy of Informal Economies, 493 Annals, Am.
Acad. Pol. Soc. Sci. 137, 140 (1987).
& Portes, supra note 24, at 12, 25. For example, there is a close association
between areas of high immigrant concentration and those places where the U.S.
informal sector is most vigorous. Id.
n30. See, e.g., Henry A. Selby Et Al., The Mexican Urban Household: Organizing for
n31. The international literature on informal
housing is large. A useful introduction and review is Catharine Farvacque
& Patrick McAuslan, Reforming Urban Land Policies and Institutions in Developing
n32. But see Peter M. Ward, Colonias and Public Policy in Texas and Mexico:
Urbanization by Stealth (1998); Jane E. Larson, Free Markets Deep in the Heart
84 Geo. L.J. 179 (1995); Guadalupe T. Luna, Agricultural Underdogs and International Agreements: The
Legal Context of Agricultural Workers Within the Rural Economy,
26 N.M. L. Rev. 9, 28-37 (1996).
n33. According to state agencies, 392,188 people live in officially designated
colonias within Texas. TDWB Report - December 1996, supra note 22. Much smaller
populations live in comparable settlements in Do<tild n>a Ana County, New Mexico, part of the El Paso-Las Cruces metropolitan region.
In 1990, the General Accounting Office estimated the New Mexico colonia
population to be 14,600 people. GAO Report, supra note 22, at 1. These are
official estimates; the population is likely larger. Jorge Chapa et al.,
Housing Characteristics and Sampling Rates in the Colonias of the Texas Border Area: A
Perspective on Census Data, Bureau of the Census, Res. Conf. on Undercounted
Ethnic Populations, Proc. 247 (Washington, D.C.) (stating that colonia
populations are likely to be undercounted in census and other official counts).
n34. A handful of colonias have been identified hundreds of miles away from the
border near the Texas cities of Houston and Austin. See LBJ School of Public
Affairs, Residential Land Market Dynamics, Absentee Lot Owners and
Densification Policies for Texas Colonias 3 (2000).
n35. For example, settlements of mobile and manufactured homes may be the colonia
equivalent in other regions of the country. Ward suggests we should begin
speaking more generically of
"substandard subdivisions," rather than the regionally specific
"colonia." Interview with Peter Ward, LBJ Sch. Pub. Aff., U. Tex., Austin, Tex. (Oct. 11,
n36. See Larson, supra note 32, at 246.
n37. See infra text accompanying notes 138-151.
n38. The International Covenant on Economic, Social and Cultural Rights, Dec. 19,
1966, 993 U.N.T.S. 3, 5.
n39. See infra text accompanying note 215.
n40. See Peter Ward, The Practice and Potential of Self-Help
Housing in Mexico City, in Self-Help
Housing: A Critique 175 (Peter Ward ed., 1982).
n41. As used in this essay, the term
"tenure" refers to the mode or system of holding lands or an interest in real property.
Secure tenure, therefore, is the right to hold land that is recognized by the
state and can be defended effectively against other claimants.
n42. There is debate in the international development literature about the extent
to which secure legal title is a predictor of
housing investment in informal
housing. See generally Stephen E. Hendrix, Myths of Property Rights, 12 Ariz. J. Int'l
& Comp. L. 183 (1995); Ann Varley, The Political Uses of Illegality: Evidence
from Urban Mexico, in Illegal Cities, supra note 26, at 172-90.
n43. For a detailed description of varying regularization approaches, see Alan
& Peter M. Ward,
Housing, the State and the Poor: Policy and Practice in Three Latin American Cities
(1985). See also sources cited supra note 26.
n44. Within city boundaries Texas law conventionally regulates
housing development, with requirements for provision of public services and
infrastructure and for
housing quality. This is true even of Houston, notable as the only large city in the
United States that does not have conventional planning or zoning. See Larson,
supra note 32, at 181-82
n45. For a detailed account of the regulatory setting in which the Texas colonias
emerged, see id. at 197-205. In some transactions, developers fraudulently
promised buyers future access to water, sewer, and other services and
infrastructure. See id. at 193-94. In the greater proportion of sales, however,
buyers were fully aware of the tradeoff they were being offered. Id. at 194-95.
Research suggests they did so with the expectation that the government could be
politically mobilized at some future date to meet community infrastructure
needs. Id. This expectation is based in part on familiarity with the
housing policies and practices of Mexico, in which regularization of informal
housing is the norm. Id.
n46. Id. at 191-93.
n47. Id. at 185-91.
n48. Tex. Department of Human Services, The Colonias Factbook 1-4 tbl.1a (1988).
n49. GAO Report, supra note 22.
n50. Chapa et al., supra note 33, at 247.
n51. TDWB Report - December 1996, supra note 22.
n52. The buyer takes immediate possession of the property and begins to make
monthly payments, but does not get legal title or realize any equity in the
property until the final installment has been paid. Should the buyer miss a
payment, the seller can retake possession of the property, retain all payments
previously made, and also resell the forfeited property at full price to
n53. In addition to offering financing, colonia developers shaped their collections
practices to the local economy, offering contract-for-deed buyers flexibility
in monthly payments. This is not typical business practice for formal credit
institutions, including governmental lenders who target their programs towards
low-income borrowers. Such flexibility is necessary for the significant part of
the colonia population who earn income only seasonally and/or migrate for work
with long absences from home. For their part, developers may be all too willing
to delay payments, which simply allows them to earn interest on interest. It is
not uncommon for a colonia buyer to make payments for years only to find he or
she owes more than the original amount of the debt.
n54. Median household income (estimated for 1997, the most recent figures
available) for Cameron County (Brownsville) is $ 21,699, for Hidalgo County
(McAllen) is $ 20,034, for Starr Country (Rio Grande City) is $ 14,178, for
Webb County (Laredo) is $ 23,386, and for El Paso County (El Paso) is $ 25,866.
Census Bureau, supra note 13.
n55. Median household income for the United States in 2000 is $ 42,148. U.S. Bureau
of the Census, Money Income in the United States: 2000 (2001) (data from the
annual income supplement to the Current Population Survey). The federal
government considers a family of five to be in poverty if household income is
less than $ 20,819, and for a family of six, $ 23,528. Census Bureau, supra
n56. In 1989, the Texas legislature created the Economically Distressed Areas
Program ("EDAP"), a project administered by the Texas Water Development Board.
Tex. Water Code Ann. 17.921-935 (Vernon 2000). The program provides financial assistance to bring water
and wastewater services to areas such as colonias. The price tag for EDAP has
gradually increased, with $ 600 million in public money already pledged, and
another $ 400-500 million estimated as needed but not yet appropriated.
n57. The Cranston-Gonzales National Affordable
Housing Act of 1990 requires that the state set aside 10% of its Community Development
Block Grant (CDBG) allocation towards projects for colonia areas located within
150 miles of the U.S.-Mexican border. Now called the CDBG Colonia Fund, the 10%
set-aside is permanent. More than 75% of these funds are being use to provide
water and wastewater system improvements. 1 Colonia
Housing and Infrastructure, supra note 17, at 76-77
& tbl 4.2.
n58. TDWB Report - December 1996, supra note 22.
n59. According to Texas statute,
""Colonia' means a geographic area that: (A) is an economically distressed
area...; and (B) is located in a county any part of which is within 50 miles of
an international border."
Tex. Gov't. Code Ann. 775.001(2) (Vernon 2001).
""Economically distressed area' means an area in which: (A) water supply or sewer
services are inadequate to meet minimal needs of residential users...; (B)
financial resources are inadequate to provide water supply or sewer services
that will satisfy those needs; and (C) an established residential subdivision
was located on June 1, 1989... ."
Tex. Water Code Ann. 17.921(1) (Vernon 2000).
Tex. Water Code Ann. 17.924 (Vernon 2000).
Tex. Loc. Gov't Code Ann. 232.023 (Vernon 2001). The Model Subdivision Rules,
Tex. Water Code Ann. 16.343 (Vernon 2000), require that land subdivided into lots of five acres or less
(modified from one acre or less in 1991) must provide adequate water and sewer
"plat" a subdivision means to create a map that shows the location and boundaries of
individual parcels of land subdivided into lots, with streets, easements, etc.
also located. Texas statute defines
"plat" as follows:
""Plat' means a map, chart, survey, plan, or replat containing a description of
the subdivided land with ties to permanent landmarks or monuments."
Tex. Loc. Gov't Code Ann. 232.021(8) (Vernon 2001). A plat is registered in the deed records of a governmental
jurisdiction. Jurisdictions require proof of conformity with applicable
subdivision regulations before the plat may be filed.
Tex. Loc. Gov't Code 232.023. To require
"replatting" allows the county to enforce tougher subdivision regulations retrospectively.
Tex. Loc. Gov't Code 232.040.
n64. Tex. Loc. Gov't Code 232 subch. B. Subdivision Platting Requirements in County
near International Border imposes the development requirements and specifies
they apply only to border counties.
n65. See Larson, supra note 32, at 197-205.
n66. See Castells
& Portes, in The Informal Economy, supra note 24, at 26.
n67. 1 Colonia
Housing and Infrastructure, supra note 17, at 38.
n68. Census Bureau, supra note 13. Colonia populations are not always markedly more
Hispanic than the cities they surround: Cameron County (Brownsville) is 84.3%
Hispanic; Hidalgo County (McAllen) is 88.3% Hispanic; Starr County (Rio Grande
City) is 97.5% Hispanic; Webb County (Laredo) is 94.3% Hispanic; and, El Paso
County (El Paso) is 78.2% Hispanic. Id.
n69. 1 Colonia
Housing and Infrastructure, supra note 17, at 38.
n70. Chapa et al., supra note 33, at 266.
n71. U.S. Dep't of
Housing and Urban Development, Office of Policy Development and Research, Issue Brief
III 3 (2000) [hereinafter HUD Issue Brief III].
n72. U.S. Dep't of
Housing and Urban Development, Urban Policy Brief No. 2 (Aug. 1995) at
http://www.huduser.org/publications/urbaff/upb2.html [hereinafter HUD Urban
Policy Brief No. 2].
n73. 1 Colonia
Housing and Infrastructure, supra note 17, at 13, 28.
n74. Id. at 13.
n75. Interview with David Arizmendi, Proyecto Azteca, in San Juan, Tex. (Aug. 4,
2000) [hereinafter Arizmendi Interview].
n76. Melvin L. Oliver and Thomas M. Shapiro in Black Wealth, White Wealth: A New
Perspective on Racial Inequality (1997), and Dalton Conley in Being Black,
Living in the Red: Race, Wealth, and Social Policy in America (1999), argue
that a family's ability to leverage investment in a house is closely linked to
their human and social capital investment. Lack of such an asset among racial
minority groups, they argue, is a significant determinant of enduring class
division along racial lines in the United States.
n77. Regina Austin has written extensively about informal economic activity in the
urban African-American community, focusing on street vending. Regina Austin,
"An Honest Living"? Street Vendors, Municipal Regulation, and the Black Public Sphere,
103 Yale L.J. 2119 (1994); Regina Austin,
"A Nation of Thieves": Securing Black People's Right To Shop and To Sell in White America,
1994 Utah L. Rev. 147; Regina Austin,
"The Black Community," Its Lawbreakers, and a Politics of Identification,
65 S. Cal. L. Rev. 1769, 1807-11 (1992). Related work on Mexican and Mexican-American street vendors in El Paso, Texas,
is Kathleen Staudt, Free Trade? Informal Economies at the U.S.-Mexico Border
(1998), and on African immigrant street vendors in New York City is Rosemary J.
Coombe, The Cultural Life of Things: Anthropological Approaches to Law and
Society in Conditions of Globalization,
10 Am. U.J. Int'l L. & Pol'y 791 (1998).
n78. See Fernandez-Kelly
& Garcia, supra note 24, at 247 (garment industries of Los Angeles and Miami);
Alex Stepick, Miami's Two Informal Sectors, in The Informal Economy, supra note
24, at 111 (referencing the Miami garment industry).
n79. See Pierette Hondagneu-Sotelo, Regulating the Unregulated?: Domestic Workers'
Social Networks, 41 Soc. Probs. 50 (1994) (regarding immigrant housecleaners);
Christian Zlolniski, The Informal Economy in an Advanced Industrialized
Society: Mexican Immigrant Labor in Silicon Valley,
103 Yale L.J. 2305 (1994) (regarding immigrant office cleaners).
n80. See Jagna Sharff, The Underground Economy of a Poor Neighborhood, in Cities of
the United States 19 (Leith Mullings ed., 1987) (discussing the activities of
underground economy in Latina/o community on Lower East Side of Manhattan).
n81. See Saskia Sassen-Koob, New York City's Informal Economy, in The Informal
Economy, supra note 24, at 74 (describing basement furniture manufacturer).
n82. See Saskia Sassen, Cities in a World Economy at 121-23 (1994)
n83. See Saskia Sassen, Globalization and its Discontents: Essays on the New
Mobility of People and Money 79 (1998) [hereinafter Globalization and Its
n84. See Frank Levy
& Richard J. Murnane, U.S. Earnings Levels and Earnings Inequality: A Review of
Recent Trends and Proposed Explanations, 30 J. Econ. Literature 1333 (1992);
U.S Dept. of Commerce, Bureau of the Census, The Earnings Ladder (1994).
n85. The national home ownership rate is 66.8% for households of all income levels,
see HUD Issue Brief III, supra note 71, but only 27% for very low income
families with children. See HUD Urban Policy Brief Brief No. 2, supra note 72.
n86. The generally accepted standard for affordability established by Congress and
HUD is 30% of income spent on
n87. See generally National Low Income
Housing Coalition/LIHIS, Out of Reach: The Growing Gap Between
Housing Costs and Income of Poor People in the United States (2000).
n88. And two out of three of all poor families live in
housing that costs more than they can afford. Nancy O. Andrews,
Housing Affordability and Income Mobility for the Poor: A Review of Trends and
Strategies, Meeting America's
Housing Needs 2 [hereinafter
n89. See id. at 2.
n90. U.S. Conference on Mayors, A Status Report on Hunger and Homelessness In
America's Cities, 2000: A 25-City Survey 40 (Dec. 2000), available at
n92. Analysts of informality in other countries do include
housing as a sector. E.g., Hernando De Soto, The Other Path 17-57 (June Abbott trans.,
1989); Allan Gilbert, Introduction to
Housing and Land in Urban Mexico (Allan Gilbert ed., 1989).
n93. Even where such
housing issues are examined, they are not conceptualized as
housing production," and so the links between related
housing practices are not understood. For example, the efforts of the urban homeless
to erect semi-permanent shelters should be understood as a struggle to produce
housing informally, and the determination of police to stop them an expression of
state policy towards informality. See Gregory Townsend, Cardboard Castles: The
Fourth Amendment's Protection of The Homeless's Makeshift Shelters in Public
35 Cal. W. L. Rev. 223 (1999). Such efforts are criminalized in U.S. cities, typically by trespass where the
property occupied is private, and by municipal ordinances prohibiting
"loitering" where the property is public. See generally Maria Foscarinis, Downward Spiral:
Homelessness and Its Criminalization,
14 Yale L. & Pol'y Rev. 1 (1996). Urban squatting, another informal
housing practice, has never involved large numbers of people in this country, although
it is important elsewhere in both developed and developing countries. On
squatting in the U.S., see, e.g., Seth Borgos, Low-Income Homeownership and the
ACORN Squatters Campaign, in Critical Perspectives on
Housing 428 (Rachel G. Bratt, Chester Hartman
& Ann Meyerson, eds., 1986); Brian Gardiner, Squatters' Rights And Adverse
Possession: A Search For Equitable Application of Property Laws,
8 Ind. Int'l & Comp. L. Rev. 119, 141-48 (1997) (focusing on New York City and Los Angeles).
n94. See Antonio Azuela
& Emilio Duhau, Tenure Regularization, Private Property and Public Order in
Mexico, in Illegal Cities, supra note 26, at 157 ("As long as a substantial part of the population gains access to land by a
different set of processes from the rest of society, it is clear that not all
individuals are subject to the same rules, regardless of whether or not those
rules can be formally classified as
"law.' It is hard to think of cases where this does not entail the existence of
profound social inequalities.").
n95. Other groups of working poor in the United States rely on informal
housing. What are known as colonias in Texas are called
"wildcat subdivisions" elsewhere, and are populated largely by whites. See, e.g., Mark Robichaux,
Just Deserts?: Arizona's Rural Sprawl, The Wall St. J., Jan. 30, 2001, at 1.
Trailer parks located in peri-urban areas occupy the same economic niche as
housing, with many of the same problems of substandard conditions. See, e.g., David
Kelly, Busts of Illegal Trailer Parks to Halt; County Heeds Protests on Behalf
of Coachella Valley Farm Workers, The Press-Enterprise, Jan. 7, 1999, at B1.
Overcrowding of apartments ("doubling-up") and illegal apartments carved out of basements or cellars are common forms of
housing, but are clandestine practices, and thus difficult to investigate and assess as
n96. Rebecca Morales
& Jesus Tamayo-Sanchez, Urbanization and Development of the United States-Mexico
Border, in Changing Boundaries in the Americas: New Perspectives on the
U.S.-Mexican, Central American and South American Borders 49, 49 (Lawrence A.
Herzog ed., 1992).
n97. Staudt, supra note 77, at 90.
n98. The Mexican politics of informal
housing has shifted towards bureaucratization and principles of entitlement. Under the
PRI in its heyday, regularization was a political process, with public services
extended to communities whose leaders disrupted the peace or promised political
support. More recently, regularization has been routinized, with residents'
labor contributions and user fees rather than politics determining eligibility.
Staudt, supra note 77, at 124-26 (describing PAN administration in Ciudad
Juarez); Peter M. Ward, Political Pressure for Urban Services: The Response of
Two Mexico City Administrations, 12 Dev.
& Change 379 (1991) (comparing two PRI administrations in Mexico City).
n99. See generally Geoffrey Payne, Urban Land Tenure and Property Rights in
Developing Countries: A Review (1997); Farvacque
& McAuslan, supra note 31.
n100. See generally Gareth Jones
& Peter Ward, Privatizing the Commons: Reforming the Ejido and Urban Development
in Mexico, 22 Int'l J. Urb.
& Regional Dev. 76, 81-82 (1998).
n101. See Staudt, supra note 77, at 65 (discussing the political strength and
visibility of collective organizations of informal workers).
& Portes, in The Informal Economy, supra note 24, at 26. See also id. at 15:
Criminal activities possess... distinct characteristics that set them apart
from those otherwise termed informal... . Those labeled
"Criminal" specialize in the production of goods and services socially defined as
illicit. On the other hand, the basic distinction between formal and informal
activities proper does not hinge on the character of the final product, but on
the manner in which it is produced and exchanged.
n103. See De Soto, supra note 92. On De Soto's adoption by U.S. economists, see Jane
Kaufman Winn, How To Make Poor Countries Rich and How to Enrich Our Poor,
77 Iowa L. Rev. 899 (1992) (reviewing Hernando de Soto, The Other Path (1989)).
n104. See, e.g., George L. Priest, The Ambiguous Moral Foundations of the
103 Yale L.J. 2259, 2271 (1994). Assessing the meaning of De Soto's research on informal sectors of the
Peruvian economy, Priest writes:
"The Peruvian informal economy... arose to satisfy unfulfilled demands.
Constrained by governmental regulations that made acquiring urban land and
housing virtually impossible through formal, legal means, the Peruvian informals
created settlements through squatting and private investment." Id.
n105. See Castells
& Portes, in The Informal Economy, supra note 24, at 27:
Informalization is not a social process always developing outside the purview
of the state; it is instead the expression of a new form of control
characterized by the disenfranchisement of a large sector of the working class,
often with the acquiescence of the state. For the latter, the loss of formal
control over these activities is compensated by the short-term potential for
legitimation and renewed economic growth that they offer.
n106. Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition
from Marx to Markets,
111 Harv. L. Rev. 621, 645 (1998).
n107. Exceptions are cited in the footnotes of this Article.
n108. This renewed scholarly engagement is encouraged and funded by engines of
globalization such as the World Bank and the International Monetary Fund.
n109. The observation is made by many, including Maxwell O. Chibundu, Law in
Development: On Tapping, Gourding and Serving Palm-Wine,
29 Case W. Res. J. Int'l L. 167, 213 (1997):
The new teaching, like the old, is justified and legitimated in tenors of the
capacity to mold and adapt the internal policies of these emergent or
transitional societies so that they conform to the prescriptions of the
external factors. Conclusions as to the success or failure of law in the
development processes of these societies are packaged and presented in tenors
of the interests associated with the United States and the West.
In Santos's terms, this is an instance of a
"globalized localism." See supra notes 7-9 and accompanying text.
n110. For example, aesthetic restrictions designed to protect the
"character" of a neighborhood such as prohibition of multi-family units or of manufactured
or mobile homes, minimum lot size restrictions, and density, setback and
frontage regulations, are among the most costly regulatory regimes in terms of
housing affordability. See generally William A. Fischel, The Economics of Zoning Laws:
A Property Rights Approach to American Land Use Controls (1985).
n111. Rent-seeking occurs when interest groups use their political capital to secure
goods from the state. Rent-seeking derives from public choice theory, which
understands political outcomes as depending on groups' political capital rather
than their political ideals. Organized interest groups expend their resources
competing for political favors, such as tax breaks or subsidies, instead of
putting them to some productive use. In economic theory, rent-seeking is
Kaldor-Hicks inefficient because it leads to an overall decline in social
wealth. See generally Gordon Tullock, Rent Seeking, in The New Palgrave: The
World of Economics 604, 604-09 (John Eatwell et al., eds. 1991).
n112. Small cohesive groups have an advantage organizing for political activity over
large, diffuse groups because they more easily overcome collective action
problems. Mancur Olson, The Logic of Collective Action: Public Goods and the
Theory of Groups (2d ed. 1971). Thus small cohesive groups control political
capital disproportionate to the interests they represent in a democratic and
n113. Texas colonia residents have created strong grassroots organizations, like
Colonias Unidas in Starr County, as well as established supportive alliances
with various NGOs, the United Farmworkers, and the churches. These groups have
been key players in bringing local, state and federal political attention to
colonia needs. See generally Roberto E. Villareal, The Politics of
Entrepreneurship: Mexican American Leadership in a Border Setting, 2 J.
Borderlands Stud. 75 (1989). The point is relative, however. These groups have
greater voice than do poor people generally; they do not, however, always
prevail against other powerful and organized interests.
n114. See Richard Delgado, Rodrigo's Twelfth Chronicle: The Problem of the Shanty,
85 Geo. L.J. 667, 688 (1997) [hereinafter The Problem of the Shanty]. The essay has been reprinted in
Richard Delgado, When Equality Ends: Stories About Race and Resistance (1999).
As in other of his Chronicles, Delgado structures The Problem of the Shanty as
a discussion between Professor and companion-interlocutors, in this instance,
Rodrigo and Giannina. For simplicity's sake I attribute statements made by
Professor, and also by Rodrigo and Giannina, to Delgado, unless he explicitly
disclaims the position in the text. In this I do not treat the Chronicles as
literature, a genre in which fictional characters are treated as virtually
"real," but instead assume that Delgado has written essay-commentaries that use
narrative form, dialogue, and multiple voices as a technique for the exposition
of the author's own ideas and analysis.
n115. See Larson, supra note 32, at 247-50.
n116. The Problem of the Shanty, supra note 114, at 688 (citing
163 U.S. 537 (1896))..
n117. Larson, supra note 32, at 249.
n118. Id. at 249-50.
n119. The Problem of the Shanty, supra note114, at 689.
n120. Id. at 680.
n122. Id. at 681.
n123. Nor is the threat imposed by this problem of the double standard easily
contained. Not just building codes, but most zoning and planning restrictions
and many environmental regulations, as well as some subdivision regulations and
landlord-tenant reforms have demonstrable exclusionary effects.
n124. The Problem of the Shanty, supra note 114, at 675.
n125. Id. (internal citations omitted). Delgado is referring to norm theory in this
symbolic claim. On norm theory, see generally Richard Delgado, Rodrigo's
Eleventh Chronicle: Empathy and False Empathy,
84 Cal. L. Rev. 61 (1996).
n126. The debate has been important to both feminist and critical race theory.
Within critical race theory the issue is race consciousness, whether in legal
doctrine and social policy (such as the debates over color-blindness versus
affirmative action), see e.g., Neil Gotanda, A Critique of
"Our Constitution is Colorblind,"
44 Stan. L. Rev. 1 (1991), or in scholarship, Randall Kennedy, Racial Critiques of Legal Academia,
102 Harv. L. Rev. 1745 (1989) and Colloquy, Responses to Randall Kennedy's Racial Critiques of Legal
103 Harv. L. Rev. 1844 (1990). Within feminism the debate is cast as one over equal versus different or
special treatment. E.g., Lucinda M. Finley, Transcending Equality Theory: A Way
Out of the Maternity in the Workplace Debate,
86 Colum. L. Rev. 1118, 1142-44 (1986). See generally Martha Minow, The Supreme Court, 1986 Term: Justice Engendered,
101 Harv. L. Rev. 10, 31 (1987) (drawing a parallel between the feminist equal treatment/special treatment
debate and the color-blindness/affirmative action debate in the racial equality
n127. Joan Chalmers Williams, Dissolving the Sameness/Difference Debate: A
Post-Modern Path Beyond Essentialism in Feminist and Critical Race Theory,
1991 Duke L.J. 296, 298.
n128. The Problem of the Shanty, supra note 114, at 680.
n131. Id. at 684.
n132. See Williams, supra note 127, at 311.
n133. The Problem of the Shanty, supra note 114, at 687-88.
42 U.S.C. 1437F (2001).
n135. See, e.g., Lucie E. White, Representing
"The Real Deal,"
45 U. Miami L. Rev. 271, (1990/91).
n136. If you can't expand the supply of affordable
housing, the obvious other alternative is to increase income through wages, welfare, or
taxes. In the 1990s there were small increases in income from greater
employment, a rising minimum wage, and increases in earned income tax credit.
The cost of
housing, however, outstripped these small income gains. In the most recent period, for
example, rents increased at twice the general rate of inflation (and thus of
wages). Further, income became more insecure with the welfare reforms of the
1990s. See U.S. Dept. of
Housing and Urban Development, The Widening Gap: New Findings on
Housing Affordability in America 2-3 (June 2000).
n137. SROs are an essential
housing resource for urban single adults. Most observers attribute a meaningful part
of the rise of urban homelessness in the 1980s to reductions in the supply of
housing and the failure to replace it. One partial response was to rewrite the
housing standards to preserve and promote the growth of SRO
housing. E.g., Stewart B. McKinney Homeless Assistance Act,
42 U.S.C. 11401 (1988) (amended 1996) (mandating rental assistance for SRO dwellings under the
Section 8 Moderate Rehabilitation program,
42 U.S.C. 1437F (2001)).
n138. Lucie White, Specially Tailored Legal Services For Low-income Persons in The
Age of Wealth Inequality: Pragmatism or Capitulation?,
67 Fordham L. Rev. 2573 (1999) [hereinafter Pragmatism or Capitulation?].
n139. Lucie White, Quality Child Care for Low-Income Families: Despair, Impasse,
Improvisation, in Hard Labor: Women and Work in the Post-Welfare Era 116 (Joel
& Lucie White eds., 1999) [hereinafter Despair, Impasse, Improvisation].
n140. Pragmatism or Capitulation?, supra note 138, at 2579.
n143. See Despair, Impasse, Improvisation, supra note 139, at 116.
n144. See id. at 118-19. Examples of some of the innovations White proposes include
encouraging peer networks of low-income, home-based child care providers;
supporting well-designed parent education and involvement programs in
low-income neighborhoods and day care centers; partnerships between day care
centers and providers in different socioeconomic, ethnic, or geographic areas
within a city or region; eclectic, well-supervised volunteer programs that
supplement a day care center's core teaching staff with a variety of
differently skilled helpers; local bond issues or linkage programs for raising
capital for facility improvement loans, and the like. See id. at 119.
"These new innovations will produce more reliably decent child care for all
families, regardless of income, because they draw upon interpersonal connection
and social commitment, as well as monetary compensation, professional ideology,
and regulatory oversight, to ensure good enough care." Id. at 120.
n145. Id. at 118.
n148. See Pragmatism or Capitulation?, supra note 138, at 2578-79 (citing and
discussing Women, Poverty, and AIDS: Sex, Drugs and Structural Violence (Paul
Farmer et al. eds., 1996)).
n149. Id. at 2579.
n150. Id. at 2578.
n152. John Gillespie, Land Law Subsystems? Urban Vietnam as a Case Study, 7 Pac. Rim
& Pol'y J. 555, 589 (1998).
n153. The Problem of the Shanty, supra note 114, at 686.
n154. But see Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social
Change? (1991) (questioning the role attributed to law as opposed to politics
on the ground in bringing about these particular social changes). The debate
over law's role in social change is extensive, joined with particular critical
skepticism by Critical Legal Studies scholars.
n155. Robin West, The Aspirational Constitution,
88 Nw. U. L. Rev. 241, 263 (1993) (elaborating the idea that a constitution primarily in the hands of Congress
rather than the Court would be a more progressive constitution). A related
account of the
"symbolic efficacy of law" in Latin America is found in Mauricio Garcia Villegas, La eficacia simbolica
del derecho (1993).
n156. E.g., Thomas A. Gihring, From Elitism to Accountability: Towards a
Re-formation of Nigerian Town-Planning Law, 10 Quarterly J. Admin. 411, 419-421
Development controls should not restrict development initiative, but rather
should themselves adapt to the natural process of urban growth... . Both
British and Nigerian experience has demonstrated that the cumbersome process of
reviewing applications often results in curtailing development progress... .
The existing legislation has achieved no higher purpose than the reinforcement
of elitism in the exercise of power.
n157. West, supra note 155, at 262-63.
n158. Joan Williams admits there is no easy answer to the thorny problem of
divergent strategies within movements for social justice and transformation.
But she suggests that reframing the dispute in terms of disagreements over
strategy rather than basic commitments to equality will allow progressives to
avoid being diverted by fruitless internal arguments. See Williams, supra note
127, at 323.
n159. Arizmendi Interview, supra note 75.
n160. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and
22 Harv. C.R.-C.L. L. Rev. 323, 324 (1987) [hereinafter Looking to the Bottom].
Id. at 325.
n162. See Mari J.Matsuda, Pragmatism Modified and the False Consciousness Problem,
63 S. Cal. L. Rev. 1763, 1778-79 (1990) [hereinafter Pragmatism Modified].
"Subordinated status plus critical consciousness-raising is the condition that
produces the knowledge I seek... . It is a knowledge that is increasingly
available to us as we enter the age of the post-colonial university."
Id. at 1780.
n163. Looking to the Bottom, supra note 160, at 346.
n164. See also Larson, supra note 32, at 235 ("Absent the prism of lived experience, pure theory or politics (no matter how
amenable the moral premises, or elegant the analytic structure) can generate
dangerously simplified prescriptions.").
n165. Looking to the Bottom, supra note 160, at 346-47.
n167. On the opposition of many community organizations in the colonias to expanding
county regulatory power, see Interview with Blanca Juarez, Colonia Ombuds for
Starr County and a founder of Colonias Unidas, in Rio Grande City, TX (Aug. 15,
2000) [hereinafter Juarez Interview]; Arizmendi Interview, supra note 75. This
position is supported by non-governmental organizations active in communities
at the border, including the Texas Low-Income
Housing Information Service (TxLIHIS) and its Border Coalition for Low-Income
Housing. Interview with John Henneberger in Austin, TX (March 16, 2001).
n168. Arizmendi Interview, supra note 75. Iniciativa Frontera included Sparks
Housing (El Paso County), Las Americas (Cameron County), Proyecto Azteca (Hidalgo
County), Colonias Unidas (Starr County), and La Gloria Development Corporation
(Webb County). Id.
n169. Juarez Interview, supra note 167; Interview with Amada (Aide) Villareal, Starr
County Colonia Assistance Corporation, Rio Grande City, TX (Oct. 15, 1999).
n170. S.B. 517, 77th Leg., Reg. Sess. (Tex. 2001), http://www.capitol.state.tx.us
(last visited Oct. 16, 2001) (adding Chapter 236 to amend Local Government
Code). S.B. 517 passed the State Senate on March 6, 2001, and was referred to
the House, where it passed out of committee but was stopped before a full floor
vote. Texas Legislature Online, Bill History for S.B. 517,
http://www.capitol.state.tx.us (last visited Oct. 16, 2001). The bill's purpose
is described in 236.001 of the legislation. S.B. 517, 77th Leg., Reg. Sess.
(Tex. 2001), http://www.capitol.state.tx.us (last visited Oct. 16, 2001). The
bill would have allowed counties to adopt rules that affect the size of lots;
the height, number of stories, size and numbers of buildings on a lot; the
percentage of a lot that may be occupied; and the location of buildings or
other structures on a lot. Id. The bill also would have allowed counties to
adopt uniform building, plumbing, and electrical standards. Id.
n171. Hearing, Subcommittee on Border Affairs, Senate Committee on Business
& Commerce, Texas Legislature, Feb. 20, 2001.
n172. Telephone Interview with John Henneberger, Texas Low-Income
Housing Information Service (July 10, 2001).
n173. Narrowly defined,
"building" codes address the structure of buildings; supplemental codes address such
issues as plumbing and electrical systems. For simplicity I refer herein to the
whole package of
housing quality standards as
n174. Eric Damian Kelly, Fair
Housing or Expensive
Housing? Are Building Codes Part of the Problem or Part of the Solution?,
29 J. Marshall L. Rev. 349, 350 (1996).
Id. at 350-51.
n176. Due to the complexity of building regulation, only the largest jurisdictions
develop their own building codes.
Id. at 351.
n177. See id.
n178. Arizmendi Interview, supra note 75.
n179. See James Pinkerton, Water Project Up and Running, But Most Still Lack Running
Water, Hous. Chron., Nov. 6, 1994, at A1 (reporting on study by Cameron
n180. Juarez Interview, supra note 167.
n183. Marilyn Frye, Oppression, in Power, Privilege, and Law: A Civil Rights Reader
60, 60-61 (Leslie Bender
& Dann Braveman eds., 1995). On the double bind in law, see generally Margaret
Jane Radin, Contested Commodities (1996); Margaret Jane Radin, The Pragmatist
and the Feminist,
63 S. Cal. L. Rev. 1699 (1990).
n184. Juarez Interview, supra note 167.
n185. Arizmendi interview, supra note 75.
n186. Looking to the Bottom, supra note 160, at 341.
n187. Located in San Juan, Texas, Proyecto Azteca is affiliated with the United
n188. Arizmendi Interview, supra note 75.
n189. The standard house design is the joint product of a committee of construction
specialists and owner-builders. Id.
Texas Local Government Code section 232.023 mandates that subdivisions in the border region certify in the platting
process their conformity to the Minimum State Standards and Model Political
Subdivision Rules adopted pursuant to
Texas Water Code section 16.343. Without such proof of conformity, no resident of an unplatted, an illegally
platted, or a nonconforming subdivision can get access to public utilities. See
Tex. Loc. Gov't Code 232.029. Under a 1999 statute,
Texas Local Government Code section 232.029(c), some occupants of homes built in pre-1996 subdivisions that cannot meet the
tougher standards, but whose utility service already has been extended, may get
access to utilities in limited conditions.
n197. Juarez Interview, supra note 167.
n198. Arizmendi Interview, supra note 75.
n199. Looking to the Bottom, supra note 160, at 360.
n200. Pragmatism Modified, supra note 162, at 1770.
n201. Cf. Dolores Donovan, Codification in Developing Nations: Ritual and Symbol in
Cambodia and Indonesia,
31 U.C. Davis L. Rev. 693,732-733 (1998) (writing about the symbolic uses of law):
From the perspectives of ritual and symbol, enforcement of the written law in
Cambodia and Indonesia is not a necessary condition to its effectiveness in
serving the purposes for which it was enacted... . A government that enacts
laws for their symbolic value is likewise absolved of any immediate duty of
implementation or enforcement. The symbolic view of codification, like the
ritual one, can serve as a cover for a multitude of sins. Not the least of the
advantages of the symbolic view of law is that it allows a government to pick
and choose the laws that it will enforce. The choices may be made in the
interests of fairness, as in the case of a decision to delay enforcement of a
newly-enacted law criminalizing polygamy, or the choices may be made in the
interests of suppressing political dissent, as in the case of a decision
immediately to enforce a newly-enacted law criminalizing allegedly
irresponsible criticism of a government. Selective enforcement of the sort
common in developing nations does not necessarily mean that the unenforced laws
were enacted cynically or without any true intention of establishing the rule
n202. See generally Douglas Laycock, Modern American Remedies: Cases and Materials
392-97, 395, 415-16 (2d ed. 1994); David Schoenbrod et al., Remedies: Public
and Private 86-89 (2d ed. 1996).
n203. The Supreme Court first held the plaintiffs entitled to relief in
Brown v. Board of Education, 347 U.S. 483 (1954). Following reargument on the appropriate form of relief, the Court decided
Brown v. Board of Education, 349 U.S. 294, 300 (1955) (Brown II). On the ensuing rule of law crisis, compare Note, Developments in
the Law - Equal Protection: Judicial Remedies,
82 Harv. L. Rev. 1065, 1133 (1969), with Alexander Bickel, The Least Dangerous Branch 254-68 (2d ed. 1986).
n204. In nuisance cases, for example, the decree may allow the defendant time to
work out some change in his or her activities that would minimize the nuisance,
rather than require cessation of operations at once, provided the public
interest is not threatened. E.g.,
Wisconsin v. Illinois, 278 U.S. 367, 418-19 (1929). See generally W. Page Keeton
& Clarence Morris, Notes on
"Balancing the Equities,"
18 Tex. L. Rev. 412 (1940).
n205. See John M. Conley
& William M. O'Barr, Rules Versus Relationships: The Ethnography of Legal
Discourse, 82-112 (1990). The authors observe that in informal courts, judges
vary greatly in both styles and approaches to the law.
n206. Globalization and its Discontents, supra note 83, at 166.
n208. I am indebted to Heinz Klug and Berta Hernandez-Truyol for help in formulating
n209. International Covenant on Economic, Social and Cultural Rights, Dec. 19, 1966,
993 U.N.T.S. 3, 5.
n210. Id. at art. 11(1).
n211. These are the signatories as of Dec. 31, 1993. Barry E. Carter
& Phillip R. Trimble, International Law: Selected Documents 410 (1995).
n212. States have direct power to establish structures that protect their citizens'
civil and political liberties, such as police, courts and constitutions, but
they cannot create the natural or social resources to feed and house those
citizens by the same measures. Yet states do have the power to influence the
creation of wealth, and even more directly, to distribute and redistribute
wealth by structures such as property law, social welfare, and taxation. So the
unenforceability of economic rights can be overstated.
n213. Transnational Legal Problems 361 (Henry J. Steiner et al. eds., 4th ed. 1994).
n214. On the debate, see Jack Donnelly, Universal Human Rights in Theory and
Practice 164-202 (1989); Philip Alston
& Gerard Quinn, The Nature and Scope of States Parties' Obligations Under the
International Covenant on Economic, Social and Cultural Rights, 9 Hum. Rts. Q.
156, 165-66 (1987); Louis Henkin, International Human Rights and Rights in the
United States, in Human Rights in International Law 25, 33 (Theodore Meron ed.,
1984); Louis B. Sohn, The New International Law: Protection of the Right of
Individuals Rather than States,
32 Am. U. L. Rev. 1, 19-20 (1982).
n215. U.N. GAOR 3d Comm., 36th mtg. at 6, U.N. Doc. A/40/C.3/SR.36 (1985), quoted in
& Quinn, supra note 214, at 158. See also Cass Sunstein, Against Positive
Rights: Why Social and Economic Rights Don't Belong in the New Constitutions of
Post-Communist Europe, E. Eur. Const. Rev., Winter 1993, at 35-36 (arguing
against the inclusion of positive rights in constitutions).
& Quinn, supra note 214, at 165-66.
n217. An optional protocol, entered into force in 1976, permits petitions from
individuals and non-governmental organizations. Few states have chosen to adopt
it. Optional Protocol to the International Covenant on Civil and Political
Rights, Dec. 16, 1966,
6 I.L.M. 383.
n218. See The Problem of the Shanty, supra note 114, at 680 (suggesting this is the
measure of equality).
n219. See supra text accompanying notes 111-28.
n220. West, supra note 155, at 262-63.
n221. The progressive realization model is a third way between the
"mud" of American legal rules. See Carol M. Rose, Crystals and Mud in Property Law,
40 Stan. L. Rev. 577 (1988) (describing back-and-forth pattern of blurring clear and distinct property
rules with muddy doctrines of
"maybe or maybe not," and reverse tendency to try to clear up blur with new crystalline rules).
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Kristen A. Stelljes