99% Invisible - 449- Mine!

Episode Date: June 30, 2021

Every year, fights break out on airplanes. They happen between the people who lean back in their seats, and the people who get their knees smooshed. Sometimes planes have to be grounded because of these arguments. If you think about it, these arguments are the result of confusion. Both people paid for a seat on the airplane, but it's unclear who owns the space behind it. Jim Salzman and Michael Heller are law professors and the authors of a new book called Mine! How the Hidden Rules of Ownership Control Our Lives. They write about these common instances where ownership is not clear cut. According to Salzman and Heller, confusing ownership rules are often the result of poor ownership design. This is true not just for airplane seats, but also for battles over digital privacy, climate change, and wealth inequality.Mine! 

This is 99% invisible. I'm Roman Mars. With a pandemic receding, I'm excited to get back out into the world, but I'm really not excited about getting back on an airplane. The seats are too small, I hate waiting in line, and in my opinion, people who lean back in their airplane seats are history's greatest monsters. Every year, fights break out between people who lean back on airplanes and people who get their knees smushed. A man apparently got upset when the woman in front of him suddenly reclined her seat.

That's when the man allegedly reached forward and started choking the other passenger. So the woman stood up and threw a cup of water in his face. A man started punching her seat repeatedly as the video shows. Sometimes planes have to be grounded because of these fights, and the reason for these fights is confusion. Think about it. Both people paid for a seat on the airplane, but who owns the space behind the seat back? The Sanctuary's battling stories, The person who's sitting in front,

they've got the button and they're basically saying, look, it's a task to something I own. If I can lean back into it, it's mine. The person in the back says, wait a minute. Possession, I'm possessing a space, I'm using it for my knees, I'm using it for my laptop. And when you lean your seat back into my space, that's trespass.

And that ambiguity actually is deliberate. Airlines are doing that in order to be able to sell that same space twice. That's Jim Sultzman and Michael Heller, their law professors and authors of a new book called Mine, How the Hidden Rules of Ownership Control Our Lives. We do a lot of public speaking about this and we'll pull the audience. And almost every single time he asks is there right to recline or right to defend your knees and it's 50-50. Really? And people look at each other with incredulity. How can you possibly think differently? Ownership might seem really clear-cut. Like if you own a house or a car, you own it. And

the story. But Jim and Michael write about how the rules of ownership are a lot more complicated than we think. Ownership rules are actually designed. Sometimes they're designed for the good of humanity, like keeping patent protection short for vaccines or even waving them completely. But more often, ownership rules can be designed for nefarious purposes, like the rules around airplane seats. Here's Michael Heller.

Ownership is ambiguous way more often than people realize. Whose wedge of space is that? Is it mine? Is it yours? We don't know. That is one of the most powerful advanced tools of ownership design, is being ambiguous deliberately in order to profit from the ambiguity.

Today, we're going to talk with Jim and Michael about how the rules of ownership are created and why bad ones can influence everything from baseball to solar panels to farmland in the American South. I mean this fight on a plane is really extreme about something that's so little in a lot of ways, you know, like a few inches of space. But your book is full of these types of stories. Like I call it an academic bar fight book, like completely joyful to read, but like it's a thing to start and settle fights

because there's all these cases where everyone thinks they're right. And so why are ownership questions so complicated? Well, they're complicated in some way. They're actually quite simple. Like, you go to a playground and then you hear kids, you know, I mean, mine, mine, mine. They both have their hand on the shovel. It's just sound, it's like the mine, mine, on the airplane seat. And it turns out that all these battles are based on the same simple stories

that kids learn and use effectively in the playground. Yeah, in your book you talk about how there are these six stories that we use to justify ownership. So what are they? Well, we have the kids in the playground. Mine. I'm first, first in time. Mine. I'm holding on to it. Possession is 910 to the law. You have a little button on the airplane. It's mine because it's attached to something mine. That's three of the six. The fourth one is it's mine because I worked for it. That's our intuition behind copyrights and patents and intellectual property. You reap what you sow. That's the fourth is labor. The fifth is it's mine because it comes from my body, our DNA. And the last one is family. It's mine because I'm in the family.

Birth and death, marriage and divorce. That's the great moment when property is on the move. And that's it. All ownership conflict. Everything that we fight about, you know, when someone cuts in front of a line at Disney, or who gets the coffee first at Starbucks, you know, whether you can get your parking space back at the end of the day, when you get out from a snowstorm, all of that, all of it, is based on just those same six stories. Yeah. Yeah.

You use this phrase possession is 910th of the law. I have never really understood this phrase. Like as an editor, I have cut it out of scripts because I don't really understand it. And I don't know if anyone really understands it. What does it mean? It actually traces back to an ancient, ancient woman, the oldest legal code still known is the code of Hamunirabias from 4,000 years ago.

And back in that code, if somebody else was on your land and they farmed it for a couple of years, even though it was your land, it became their land. So possession, it turned out, was 9th 10th of a law. Your ownership mattered, but if you didn't defend it against a possessor who was adverse to you, who was farming it against your wishes,

they actually became the owner. And that law of adverse possession from 4,000 years ago is still the law today. It blows the minds of our students. When they find out, it'll turn out to say, Hey, in my backyard, my neighbor mows the lawn. Does that mean that they're going to own the land? Yeah, eventually. Or the fence is not quite in the right place. Or we cut through a neighbor's backyard to get to the beach. All of that reality of who's actually possessing

and using land, that becomes the law. Part of possession's non-tense of law is actually a very deep-seated psychological fact to being human. Psychologists call it the endowment effect. When you physically possess something, it becomes more valuable to you. So imagine, for example, you're at a supermarket and you've filled up your shopping cart and Michael comes along and says, eggs, perfect. I was looking for that. Oh, you've got cheese too. I'll take that too. How would

you react? Yeah, I would feel like he was stealing from me because it was in my cart, but I do not own it because I did not buy it. Yeah. So where's it coming from? Right? There's nothing more fundamental about ownership than realizing that ownership is just a storytelling battle. It's just my story of first versus your story of labor, or my story of possession versus your story of attachment. That is all ownership is, it's those competing stories. So I, for example, teach at Columbia Law School. And there's a campus, there's open people just walk across it. Once a year in a quiet Sunday morning, they lock all the gates. Not because they're doing maintenance, but just to say, this is ours,

and you can't make a claim, you the public can't make a claim, you don't eventually own it by possession, because we can keep you out and we do it once a year. As you walk around New York City, you see these little plaques in the sidewalk, let's say permission to grant revocable at any time. And what the buildings are doing there is they're trying to keep that sidewalk private. Even though other people are walking on it, they don't make a claim to it because they're

there by permission with that little plaque. It's not adverse. It doesn't eventually lead to ownership. So you may not think about this in your day-to-day life, but the life of who owns what is not static is always a choice. So an example from a book of confusing ownership design is about baseballs. Who owns a baseball when it is hit into the stands in a game? So tell me this story about Barry Bond's

home run ball. So as many of your listeners who recall, Barry Bond's had this incredibly media-fueled frenzy about breaking the single season record for home runs. There was a guy named Popov, and he was not just a student of baseball. He really studied where Bond's home runs had landed, and so he bought a seat at baseball. He really, you know, studied where bonds, homeruns, had landed,

and so he bought a seat at Pactel Stadium, and he brought his baseball glove with him for the day that he hoped bonds would break the record. And in fact, he was in the exact right place. Bond cracks the ball. There's a high pride! Deep in the right center field to the big part of the rock park, number 70. That was out of the park, and he catches the ball for an instant and then he's mugged. The ball is jarred loose and this guy, Hayashi, who just happened to, you know, be there because it would be fun to go to a game, walks out of the melee with a ball that some people are saying is worth a million dollars. This being the great country of America, pop up Susan, right?

So, you know, we're talking about possession and Zontet, the law doesn't mean he owns the ball. This being the great country of America, pop-up Susan. Right? So, you know, we're talking about possession on 10th of the law. Doesn't mean he owns the ball. And so the question, it goes to court. And the judge asks, well, who should own the ball? And it's not obvious, right? So you could say for pop-up, well, it's labor, right? He did the work to figure out where to stand.

It's first possession. He actually had the ball for a moment, then it was dislodged. Hayashi is current possession, so which story should win? Well, it's not just that, right? It's also a question of how do you want to design the rule to shape behavior, right? So if we want to protect future game goers, I mean, it turns out a lot of folks are injured with foul balls and other balls. Maybe you want to encourage the pop-ups of the world to actually go out there, you know, with the gloves to protect us. And so the rule is as soon as you've got initial possession, even

it was Jarlus, it's yours. Or we say, look, let's go to custom. You know, the fact is that when you go to a ball game, whoever ends up with a ball, they own it. It's not uniform, right? You don't see fans going home from a football game with a football. You don't see fans going home from a soccer game with a soccer ball. The custom in those sports is you return the ball. And then of course, there's the great question, well, why doesn't Bond own it? Right. Of course, but he was actually, he's the one person who probably shouldn't own it, because he was trying to get the thing out of the stadium. So the judge ultimately decided to auction the ball and split the proceeds between the two men. Was that a good

outcome? It's like there was Solomon's revenge here, you know, a perfectly plausible solution was trying to be fair as between Papa and Hayashi. You can always decide, and ownership is never a given. There's no answer what you have to do. Gemini basically want not to get hit by foul balls. Like I'm more likely to get hit than to catch one. So I really think the rule should have been Papa. So a lot of ownership rules do is I tell you how to behave in the world.

So one of our basic points, if I get across to our students, to our readers, is that ownership works like one of the great invisible remote controls of your life. All these ownership rules are steering you this way in that to get you to do what somebody else wants. And what I want with the baseball is somebody else to watch out over me, and that's pop-off. This is an example of how poor ownership design can end up in court, but there are some examples of good ownership design leading to better outcomes, and I'm thinking in particular of the show, the Deadliest Catch. The vast, bearing sea.

Over a million square miles of the world's most violent and unpredictable waters at all of the deadliest catch Alaskan crab. And the first season is extremely harrowing because it's a derby style system and that system was really dangerous, but they changed the system in the later seasons and I have to admit the deadliest catch became a lot more boring, but it was more safe, it was better in every way. It just was made for boring TV. Can you describe the new ownership system and how that worked? Sure. So as you describe, the rule had been first come first served. So there was a quota that was set,

season started, and basically this season ended when the quota 10 tons, 20 tons, whatever had been caught. And this led to what you call derby fishing, and it was incredibly dangerous because if the weather's ended when the quota 10 tons, 20 tons, whatever had been caught. And this led to what you call derby fishing, and it was incredibly dangerous, because if the weather's terrible, you go out, because if you don't go out and someone else goes out, this is the over before you get a chance. It was actually more dangerous statistically

to work on a king crab boat in the Bering Sea, Aflaska, than to be on foot patrol in Iraq during this period. Wow. Wow. It changed because of some very clever ownership engineers in Iceland of all places. And they said, wait a minute, let's look at how the catch is owned. What they said is, what if we take that season's catch and we divide it up in front, right? At the start of the season. And so, you know, Roman, you caught three tons of fish last year, you get what's called an allowance,

right? You basically get a permission to catch three tons this year, Michael only fished one ton, so he gets one ton. When the weather's bad, you stay in port. When the price is low, you stay in port. And as a result, very quickly, as you said, deaths went down, profits went

up. And in fact, no one's died for years in this fishery. You know, the problem is you can't call the show the not so deadly catch, right? Who's going to watch that? And so the real, the real loser and all this has been the editors of the deadliest catch because they've got to manufacture these terribly dangerous looking situations, but this idea called catch shares really has caught on around the world. And that's how the best fisheries are now managed. You read about how technology changes ownership rules and how it can make the rules more complicated.

An great example of this is how Amazon and Apple sell movies and books online. How has the ownership of books and movies changed because of technology? So there have been some studies done on this and 85% of people, when they buy an e-book or and 85% of people when they buy an e-book or download a movie, actually e-books a better example, they feel as though they have full ownership as though they actually own the hard copy of the book. And that's just not the case. We are streaming a series of ones and zeros. We basically are licensing the access to those ones and zeros. Amazon and Apple can and have taken content back. You look at your iPhone, right? What is your iPhone? What do you own with your iPhone? You own a plastic brick, right? What is value by your iPhone is the operating

system. You don't own that. The data on your phone, you don't own that, right? We are moving sort of it really is an apical shift. We're moving from the tangible idea of ownership, which is basically how we evolved to this non-tangible. The way that Amazon profits from this is that we bring with us our physical tangible notion, this notion of possession. We bring that to our online lives. So when Amazon, when you check out, they have a little shopping cart, and they have a little buy now button.

All of that is very carefully engineered to give you an image of ownership and is not what you're actually getting. Online, the buy now button does not mean what you think it means. I mean, one of the things that forwards the story or changes the story, as you mentioned with Facebook Facebook and is technology itself.

It changes the story of ownership quite a bit. And one of the great stories of this ambiguous ownership involves air rights over land, which really took a different turn as soon as airplanes started flying over land. And when original land ownership ideas had no concept of airplanes. Can you talk about this as being kind of the fraught subject of air rights and land ownership? Sure. So this is the story of attachment, right? A landowner knows that they own the surface, but do they own the column of air that goes above the land? Now there's this old Roman law maxim that you own actually from heaven down to hell.

And so it seems kind of silly now, but in the early age of modern aviation, there actually were trespass suits that were brought against airlines flying over people's backyards. And if you think you own this column of air, well, it is trespass. Now fortunately, courts said, no, no, no, no, no. You only control a certain amount above your house. So that was settled. But it's playing out again right now with drones. So Amazon, UPS, Domino's pizza, they all envision a world where drones are going to take care

of deliveries instead of cargo trucks. And technically, it's not far away, but there's a problem. And the problem is when a drone flies over your backyard, is it trespassing? We have federal law that dictates how high a drone can fly, but it's silent how low a drone can fly. And at what point is a drone, like an airplane that's 10,000 feet above your property? And at what point is it someone in a UPS uniform jumping over your back fence, you know, and clambering across your yard and jumping out again? This is up for grabs and it's incredibly significant in terms of what delivery services

are going to look like in the near future. Another part of ownership, the air, comes a big issue when we're talking about solar panels. You need access to sunlight for solar panels to work. And there's this really interesting case in Sunnyvale, California evolving solar panels and and redwood trees. Can you describe this story? Yeah, and it's the perfectly named town right, Sunnyvale, right? Where else would you have an argument with over solar panels? There's this sort of little sort of green enclave two neighbors one house has these nice redwood trees that are growing stully and the neighbor puts in solar panels and in time the redwood trees start to shade the solar panels and The guy with the solar panel says hey attachment, right? I have a right to the sun that's powering my solar panels

You need to top your trees off and the other saying no, no, no, you know This is attachment basically. I control what happens on my property They what makes it such a great story is it's green versus green right who wins between growing trees and solar And the fact is when you think about this quickly you say well one person's got to win right either you get solar power or you get trees And California they put their thumb on the scale of solar panels quickly you say, well, one person's got to win, right? Either you get solar power or you get trees. In California, they put their thumb on the scale of solar panels and basically said, the trees have to come down. There's this wonderful quote this person says that where the first person ever to be prosecuted for growing redwoods, right? But one of the things we talk about in the book is there are clever ways to design ownership. And so what you could do is you could say,

okay, solar panels owner, you can get your solar power, but you've got to compensate your neighbors for lopping off their trees because there's nothing morally wrong. They're not bad people for growing trees. Or similarly, if we say to the tree owners, you can let your trees grow, but you've got to compensate your neighbor

for the shade that you're casting on the solar panels. Then you change the discussion. In really the solution had to do with the state of California, feeling that solar panel and energy development was more of a priority than growing what redwoods at that moment. I think that's kind of fascinating, like that values are involved, rather than fairness, in ownership is pretty interesting and probably kind of mind blowing. I don't think people think of it that way. It's true.

And it's turtles all the way down. Like it's true for every own, you know, all day long, it's where you live. That's what you drink. All of those disputes, all of those choices go very quickly to our most fundamental values about what's fair, about what our society to look like. All of that is encoded through ownership. this. So far people fighting over airlines eats in baseball. It can feel like the entire world is encompassed in those fights, but they're pretty small stories. But some of the biggest tensions in our country come from confusing ownership rules, like how Europeans come to America as colonizers,

and they see ownership very, very differently than how indigenous people see it. So could you talk about how ownership affects that type of conflict? The place that you're standing or sitting right now, somebody owns it who bought it from someone else, who bought it from someone else, and that trace is back to conquest. Every piece of land in America traces back to conquest by European settlers of Native Americans. And that's true not just for all land in America, that's true for all land everywhere in the world. But history is a series of conquests and dispositions. Ownership starts anew, the clock starts anew when you have some new regime takeover. So in the U.S., there was a real question early on, which is who owned America?

And courts had to figure this out. And the turn to what they decided is that productive labor is what counted. So who was first in America? When the courts were thinking about this in the early 1800s, they said, first is first to cut down trees. First to make New England look like Old England. So for the courts, they defined first to basically privilege a merchant and agricultural economy over a native economy that sort of tread lightly through the soil.

And what that reveals is that these stories who who is first, are themselves always up for grabs. This has always been true, and this is true today, um, and fights them Cuba over who's going to own, you know, Havana, if the government there changes. It was true in Eastern Europe after the Soviets fell. That it's always based at some ultimate level on force and conquest, and what you have is a battle of stories about what and who should be first.

One thing we learned from your book is how ownership rules can be arbitrary, and land in America is the most brutal example of that. Something I didn't know is that land ownership in America was actually litigated in court, but of course the courts were enforcing the ownership rules invented by the European colonizers. Well, you know, in the same cases that say, you know, first is the first to make new and little like old The courts also said the you know the courts of the conqueror Determine the boundaries of the conquest. Yeah, so that that is you know, there is an underlying reality Might makes right which underlies

ownership always. I was also really fascinated by this discussion that you have in the book about how ownership affects black wealth in the country. Could you tell me about some of the issues facing black landowners in the South? After the Civil War, the real promise America made to African Americans was, one of the promises was 40 acres in a mule, and they actually meant that literally. And then the US didn't really follow through on that at all. But Black Americans took up the challenge of acquiring land in earnest. And by 1920, there were a million Black farm families in this country,

substantial amount of southern land was owned by black farmers. In the last 100 years, since 1920, black farm land ownership is dropped by about 98%. There are fewer than 20,000 black farm families left in America today. A lot of the reason for that is racist violence and racial discrimination, particularly in farm lending. That's a big part of the story. But there's another part of the story that really hasn't been told very much. And it's an artifact of ownership rules.

So if you die without a will, and black farmers usually did, you'll land a split among your kids, might be three kids or four kids or five. And if they die without a will, it's split in other ways. So one farm, 100 acres, might have three and 5 and 9 and 30 and then hundreds over the years of partial owners. They turned a little fraction of the farm. And it turns out that American law makes it virtually impossible for those farms, farms that are owned by a big group of errors to be managed at all. And white lawyers figured this out in the south, that they could buy a 1-100th or 1-1000th

share of that farm. They could buy out for 100 bucks. They'd find some air in Chicago and say, I want to take that 1-1000th share that you have. It turns out under American law, with that 1-1000th share, you can force on the courthouse steps a sale of the farm as a whole. It was a cash sale. I meant that the Black Farm family that owned it had been in their family for generations, lost their farms on these so-called partition sales when they were sold on the courthouse steps for trivial amounts to the white lawyers who had gone north and bought these very small shares.

So that sort of hidden rule of American ownership, sort of the intersection of how you own property together and what happens if you don't make a will, has led to just devastating wealth destruction for black farm families in this country. It's quite easy to fix. Number of European countries have rules that make it actually quite easy for those co-owners, all the grandkids and great-grandkids, to actually manage the farm effectively, to be able to get mortgage, just be able to improve the farm. But American law doesn't really allow for that.

And it's been one of the great engines of wealth destruction for African Americans over the last century. What's clear is that ownership is not a fixed thing. It's not cut and dry. It's always something that's negotiated over time. So if I were to take your book, knowing all the things I know from it, and I'm on an airplane, and someone leans back, how should I take the knowledge from your book and turn it into a practical lesson in that moment? Well, for every story in the book, there's different ways you can respond. You can respond as a consumer and as a citizen.

So let me tell you first how you respond as a consumer. The event study's done about this. The person in back who's squished turns out to often be the academic researcher. And what they've discovered is that there are ways to solve this problem just as the person who wants to keep their laptop, not totally in their face. And here's what you do. This is actually news you can use for your listeners. It turns out that if you offer them 20 bucks,

person in front typically won't take it. And if you just ask them how to lean back, they look at you funny. But there is something that does work. So it turns out that if you offer to buy the person in front of you a drink or a snack, three quarters of the time, they'll accept it and they won't lean back. Turns out that people like to feel like they're in

community. They want to feel like they're good guys. And the way to sort of engender that feeling is to offer them a drink or a snack. So that's how you solve the problem of the person leaning into your lap as a consumer. There's also an answer as a citizen, which is that we're getting mad at each other as that space shrinks. We can take the story of ownership and we can say the airlines are using this tool of strategic ambiguity and we can lobby, we can lobby to change the rules. In 2018, the FAA decided that airline seat design was going to be left totally to the airlines.

But that's just a choice. And it's a choice that can change. And if there are enough fist fights, if there's enough pressure by consumers who are pissed off, then the rules will change. There's no fixed rule for who owns what, Who owns that wedge of space up in the air? That's great. I love the idea of us locking arms and just we just blame their lines. I mean that's true that I mean because they're fall We should play the robots It's not the friendly skies

The book is so fascinating. I had such a good time reading it. Thank you so much for talking with me. Pleasure to be here. This is really fun. And as a long time super fan of your show, this is a real treat. Jim Sultzman and Michael Heller are the authors of the book Mine. How the hidden rules of ownership control our lives. It is a very fun book to read and to argue about. You can enjoy it. We're off next week for a short summer break, Celebration July 4th, but we will return with new episodes on July 13th.

99% Invisible was produced this week by Chris Baroube. Music and Sound Max by a director of Sound, Sean Riel. Our executive producer is Delaney Hall, Kurt Colestetti is the digital director, the rest of the team, includes Vivian Le, Joe Rosenberg, and Fitzgerald, Christopher Johnson, Lashemma Dawn, Sophia Klatsker, and me Roman Mars. We are part of the Stitcher & Serious XM Podcast family. Now headquartered at 6 blocks north, in beautiful, uptown, Oakland, California. You can find the show and join discussions about the show on Facebook. You can tweet me out Roman Mars on the show at 9-9-PI-ORG, we're on Instagram and read it too.

You can find other shows I love from Stitcher and every past episode of 99PI at 9-9-PI-ORG. Excuse me, hi, Sean Rial here. This got me thinking. This episode is kind of mine. I mean, I mixed it, so I'm the last hand on it, and possession is in fact 9th tense of the law. So I think what this means is I get to do the stitcher tag. Well here we go. Stitcher!