There’s a lot to love in this New York Times profile of the Mister Softee/New York Ice Cream feud:

“Let me tell you about this business,” Adam Vega, a thickly muscled, heavily tattooed Mister Softee man who works the upper reaches of the Upper East Side and East Harlem, said on Wednesday. ” Every truck has a bat inside.”

Mr. Vega, 41, said that if he comes across a rival on his route, “I jump out and say, ‘Listen young man, this is my route, you gotta get out of there.”

Battle lines being drawn around ice cream sales in Midtown Manhattan is the kind of story meant for a Disney movie. Or maybe something R-rated, just for the bravado of “Every truck has a bat inside.”

I’ve always hated the local ice cream trucks, which are really trying to overcharge my for ice cream by training my daughter to have a melt down if I force her to eat store-bought ice cream instead of the overpriced stuff being advertised with a racist tune. (Well, maybe not. But still…) And now it turns out that they really are scary:

“If one of my drivers goes to Midtown, they’ll bring their trucks in and surround them — a bunch of guys,” said Peter Bouziotis, who runs the Softee depot in the Bronx, which covers Manhattan. “They’ll start banging on the windows.”

In various spots, I’ve seen this bad behavior tut-tutted and blamed on capitalism. But I suspect that this particular case (as well as most of the cases like it) actually has very little to do with capitalism and everything to do with the fundamentals of a non-capitalist economic system: common pool resource management.

This kind of social norm enforcement through threats and violence is a fairly common way of organizing property regimes when social or legal factors prevent privatization and legal exclusion. The technical definition of a common pool resource requires that the resource be rivalrous (able to be used up) but non-excludable (it can’t be locked away.) Tourists are both, even though they don’t think of themselves as resources or property.

The commons is precisely not “private property.” It’s commonly held. This caused many modern economists to argue that there was a “tragedy of the commons” whereby commonly-held goods would be used up rather than stewarded: each user would have an incentive to maximize–privatize–as much of the common-pool resource as possible, and so the commons would be ruined. These economists argued that only private property–and thus capitalism–could save the earth from overuse. Thus, for instance, we need to have “cap-and-trade” regimes so that corporations will maximize the profit to had from their privately-held shares of pollution, and this is supposed to be better than taxing pollution or simply regulating it away.

But in practice, the economists were wrong, as Elinor Ostrom and the Bloomington Workshop showed: commonly-held goods can be protected and managed as effectively as privately-held goods, and under conditions where private ownership is impossible to enforce. Unless the community is heavily disrupted (for instance by imperialism or police occupation) common-pool resources aren’t overused because users are understood to have a “share” by communal norms rather than legal title: exceeding one’s “share” is punished by the community of users.

In common-pool resource management systems, social norms take the the place of physical exclusions, and these norms include the ability to sanction–often physically sanction–potential interlopers. Crucially, this requires all sorts of negative emotions and actions that liberals such as myself don’t like: shame, resentment, contempt, us-v.-them tribalism, and even violence (on the small-scale “get the bat” variety or large-scale “revenge-killing” variety.) Common-pool resource management requires insiders to sanction poachers, and that’s what New York Ice Cream is doing here:

“From 34th to 60th Street, river to river, that’s ours,” he said on a recent afternoon, moments after handing a chocolate cone to a delighted-looking little boy. The vendor would not allow his name to be published for fear of losing his job.

Look at Maine lobstermen (cf especially Acheson’s The Lobster Gangs of Maine) or fisheries management in Taiwan or Chile or water rights on the West Coast and you see the same behaviors emerging organically. We also see it in drug distribution, it’s true. Recall Vanda Feldab-Brown’s work on illicit markets and violence:

It is not inherent that illegal economies, including the drug trade, are violent. There is great variation. But there are other factors apart from the quality of law enforcement, such as the central balances of power within the criminal market. Are there few groups that have developed a balance of power and defined territories, or many small groups that constitute a slim market of mom-and-pop types of enterprises that do not have the capacity to trigger or generate any violence?

Violence is a tool for exclusion. That sounds like a universal evil, but it’s not; it’s just as much a tool for the maintenance of contested common pool resource systems as it is a tool for more deeply problematic exclusions. My own preferences are for a violence-free world; but this of course just means that my taxes pay others to credibly threaten interlopers for me, as well as actively utilizing violence on my behalf.

Now, many people object when I use the explanation for the violence in the illicit economy that leads many of our students at the prison to be incarcerated. And indeed, I don’t think that all of their behavior is defensible in this way. But it’s important to understand just why illicit markets are violent: participants lack access to legal title to their businesses and to legal conflict resolution mechanisms. Largely because of racism and racist educational systems, they are unable to participate as equals in the legal labor market. They’re thus thrown into the grey and black market for labor, where they cannot access police and courts. Under those conditions, where none of their property is protected, participants in the illicit market are thrown back onto traditional conflict resolution mechanisms, which emphasizes honor and uses credible threats of violence to enforce property and contract rights.

If anything, New York Ice Cream is like the ideal of labor organizing; they were working for Mister Softee and tired of being exploited by licensing fees–payments to capitalists by laborers for the privilege of laboring–so they expropriated the means of production and locked the bosses out of the factory, that is, out of Midtown. Then, they made life difficult for the scabs:

The rift between New York Ice Cream and Mister Softee goes back to around 2013. According to court documents, Mr. Tsirkos held at least a dozen Softee franchises at the time, mostly in Midtown. Several of his drivers said that he was upset at high franchise fees and inflated prices for supplies. So he took his trucks (they are owned by individuals, not Mister Softee), added sprinkles and a waffle cone to the logo, and struck out on his own….

Ironically, the one place we don’t see poachers sanctioned is in heavily-policed high-oversight free-market property regimes (aka capitalism) because that’s where the rich are able to control things using rules and courts instead of social solidarity. In those situations, they often use the ideology of fair competition to force insiders to compete with poachers and scabs.

To be clear, I’m not endorsing drug markets, or even beating up your food truck competitors. But I find it strange when ordinary human behavior–often the laudatory kind that is responding to a larger abuse of power with small-scale violence–is pathologized by my fellow liberals who recognize the small-scale violence but ignore the larger abuses.

New York Ice Cream’s drivers have bats; Mister Softee’s drivers have been slashing tires, making death threats, and now the owners have the court system extracting six-figure judgments from the people doing the work and giving it to the people who hold the private right to the intellectual property:

Mr. Tsirkos has been ordered to compensate Mister Softee for his misdeeds. Last week, a federal judge ordered him to pay Softee $287,858.44 in lawyers’ fees, bringing the total he owes to over $767,000. (So far, Mister Softee’s lawyers say, Mr. Tsirkos has parted with only $2,426.)

So my expectation is that this short-lived Paris Commune of frozen dessert distribution will soon come to an end.