Podcast Summary: Amicus With Dahlia Lithwick — "The Lawlessness of Property and Ownership"

Slate Podcasts | August 14, 2021

Overview

This episode of Amicus With Dahlia Lithwick explores the often-invisible rules and conflicts surrounding property and ownership in modern life. Host Dahlia Lithwick is joined by Michael Heller, Columbia Law professor and co-author of Mine: How the Hidden Rules of Ownership Control Our Lives (with James Salzman). Together, they examine how simple, often-instinctive stories about "mine" shape society, law, economics, and daily experience—and reveal how true "ownership" is far more ambiguous, engineered, and manipulable than we recognize.

Key Discussion Points & Insights

1. The Intuitive but Deceptive Nature of "Mine"

• Toddlers and the Origins of Ownership
  • Children seem to innately grasp concepts like possession ("I'm holding it") and priority ("I had it first"), which form the backbone of our adult arguments about ownership.
  • Quote: “What they’re actually doing there is not just mine versus mine. One kid is saying, it’s mine because I’m holding onto it, and the other is saying, no, mine, I had it first. And what they’re engaged with…is nine tenths of the law.” (Michael Heller, 02:34)
• These instincts map onto six basic maxims of ownership that underpin major social and legal disputes.
• In adulthood, these simple stories are "flipped upside down" by businesses and governments for their own interests.

2. Airplane Seats as a Microcosm for Ownership Conflicts

• Who owns the wedge of space?
  • The famed “recline or not” argument is a window into conflicting theories of ownership: attachment (it's mine because my seat reclines) vs. possession (it's mine because I use the space).
  • Knee Defender Case Study: The use of a device to block recliners led to conflict, water thrown, and an emergency landing.
  • Quote: “That little conflict on the airplane seat is not just an accident. It’s deliberately engineered by the airlines so they can sell that same space twice… It’s what we call strategic ambiguity.” (Heller, 05:54)
• Airlines profit by leaving boundaries vague, pitting passengers against each other rather than questioning the airline’s practices.

3. The Limits and Flexibility of Law in Ownership

• Most ownership disputes (movie seats, bar drinks, parking after a snowstorm) are governed by local, informal rules—not by formal law.
  • Quote: “99.99% of ownership disputes are outside of the law.” (Heller, 09:39)
• Local customs can vary regionally or by context, such as signaling unfinished drinks with napkins (Boston vs. New York) or saving parking spaces in snow.

4. Ownership as Choice: The Rocking Chair Dilemma

• Ownership decisions involve value judgments, not simple rules.
  • Case: When a rocking chair is inherited by two siblings, there’s no legal answer—only options (flip a coin, assign by sentiment, auction it, or divide usage).
  • Quote: “There is no correct or natural or right legal answer…What ownership is about, who gets what and why—these are value choices.” (Heller, 15:21)

5. The Six Basic Maxims of Ownership—and How They’re Subverted

• First come, first served: Once felt fair; now engineered away by those with more resources and by institutions that design the “rules of the line.”
• Paid line standing at the Supreme Court, Disney's FastPass, and premium tiers at events show how "first" is manipulated.
  • Quote: “The real rule today turns out much more often than not to be first come, last served.” (Heller, 23:55)
• Such engineering of ownership rules is deeply embedded in American history—settler claims over Native lands, sports tickets, and more.

6. Ownership Conflicts at Scale: Data, Land, and Law

• The same principles underlie disputes over digital data (clickstreams, privacy), intellectual property, and land.
  • Example: Facebook claims user data based on “labor” (our platform collected it); users could argue “self-ownership.”
  • Quote: “It is possible for us to push back with self-ownership…We should get paid to give up our privacy.” (Heller, 31:07)
• High-stakes property battles (Native American land, Israel/Palestine, post-Communist states) are often clashes of competing narratives about "who was first," "who labored," etc.

7. Law’s Impact—and Its Absence

• Sometimes, the problem is too little law (ambiguous property rights) but in other contexts, there’s too much law or the law is selectively applied, contributing to systemic wealth loss (e.g., African American landowners losing farms via "partition sales" in the South).
• Meanwhile, the super-rich exploit favorable legal havens (South Dakota trusts).
  • Quote: “South Dakota has become the world’s leading money haven…not metaphorically different legal system, an actually different legal system.” (Heller, 44:06)

8. Digital vs Physical Ownership: The Illusion of Possession

• Online, possession is "one-tenth of the law"—buying an eBook or digital movie licenses it on a company's terms, not truly owning it.
  • Case: Amazon remotely deletes copies of 1984 from Kindles.
  • Quote: “There’s a big gap between what people feel like they own and what they actually own online.” (Heller, 48:44)

9. Politeness, Civility, and the Future of Ownership

• Most day-to-day property allocation relies on manners, negotiation, and shared understanding—not law or force.
  • Quote: “A lot of what it means to be a grownup is to be socialized into language…is the language of ownership.” (Heller, 54:42)
• Real empowerment comes from understanding and questioning the hidden stories and making conscious decisions about values.

Notable Quotes & Memorable Moments

• “Ownership is ambiguous a lot more often than people realize, and that ambiguity is really valuable.” (Heller, 06:52)
• “The ultimate owner is using their ownership like a remote control…Ownership engineers use it to steer you quietly and invisibly.” (Heller, 26:27)
• “We have to understand that there are this very simple handful of ownership stories that are driving all these debates. And the people who are the real owners are pretty good at telling their story.” (Heller, 32:56; repeated in conclusion)

Timestamps for Key Segments

• [02:29] – Toddlers, intuitive vs. grown-up ownership stories
• [04:20] – Airplane seats, “Knee Defender” and strategic ambiguity
• [08:53] – Law’s limited role in daily ownership disputes
• [12:50] – Regional ownership rules (e.g., snow removal, bars)
• [13:39] – The rocking chair inheritance dilemma
• [21:32] – First come, first served and engineering of lines (Supreme Court, Disney)
• [31:42] – Digital data and competing claims of ownership/labor
• [37:01] – “I reap what I sow,” IP law, and fashion’s lack of copyright
• [40:07] – Drone rights, the myth of the “castle,” up/down/under property
• [43:02] – How law facilitates or destroys ownership (partition sales, South Dakota trusts)
• [47:39] – The illusion and implication of the sharing economy
• [50:25] – Difference between digital and physical ownership
• [54:42] – The role of civility, negotiation, and narrative in everyday property
• [56:44] – Supreme Court’s ambiguous resolution on line-standing
• [58:29] – Closing remarks and reflections

Tone and Takeaways

• Tone: Engaging, accessible, sometimes wry; Heller works to demystify legal doctrines and empower listeners.
• Final Message: Understanding the hidden architecture of ownership is the first step to having more control over our lives and advocating for more equitable rules. Most of our interactions are designed, not accidental—and once we see the stories underpinning these rules, we can challenge them or use them to our benefit.