← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Lawlessness of Property and Ownership
00:59:53
Property law isn’t what you think it is, and it doesn’t do what you think it does.
Loading summary
Transcript40 lines
- [00:05]
A
We should get paid to give up our privacy. And as citizens, we can push for that. But 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.
- [00:24]
B
Hi and welcome back to Amicus. This is Slate's podcast about the courts and the Supreme Court and the law and the rule of law. Hey, I'm Dahlia Lithwick and this week is part of our summer blockbuster series on books or films, ideas that you may have missed that you might want to mull over a little bit over the summer while the court is in recess. And we wanted to talk this week about how the hidden rules of ownership control our lives. This book was co written by Michael Heller and James Saltzman. It was published by Doubleday this past spring. Spring Mine seeks to do for ownership what Freakonomics did for incentives and what Nudge did for our cognitive biases. It opens up a new kind of counterintuitive and I thought, really fascinating way to think about the world that we all take for granted. I'm joined this week by one of the authors, Michael Heller, who is the Lawrence A. Wein professor of Real Estate Law at Columbia Law School. He's also the vice Dean there. So, Michael Heller, welcome to Annika, it's.
- [01:33]
A
So great to be with you here.
- [01:35]
B
And I want to start by saying that you both open and close the book with Toddler Rules, which I love, and that mine is actually the very first word that many toddlers say. I think it was probably the third for mine mine. And we feel like we have an intuitive kind of cognitive, cultural understanding of what mine means. But the whole point of the book is that almost all of that is wrong and that I know in a minute we're going to talk about your maxims, your six big maxims. But I wonder, just by way of setting the table, if you can tell us a little bit about what if there is some overarching theme of how toddlers think about the world and why they're wrong, if you could distill it for us.
- [02:29]
A
Well, toddlers actually get it pretty right. So when you see two kids fighting in a playground, what you hear them saying? One kid's shouting mine, the other's shouting mine as well. What they're fighting over is a toy shovel that they both are holding onto. I've had this experience many times with my kids. It sounds like you have as well. But 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 there in that battle of first in time versus possession is nine tenths of the law. They're actually arguing through some of the very basic stories about how ownership really works, which traces back to those very few, very simple stories. So that piece of it little kids are getting, right, they're actually relying on the very few stories that we all use to claim everything in the world. Where it gets complicated is in the grown up world where businesses and governments have figured out ways to turn each of those simple stories mine, possession upside down so they can get you to do what they want without you even realizing it.
- [03:42]
B
There's such a through line in this book around air travel. Air travel really is whether it's. And we'll talk about whether you can tilt your seat back or not, whether you can save the seat next to you. But I wonder if air travel signifies some frontier to you in doing the research for this book about ways in which these ideas of who owns what all get smushed in this really complicated and fraught way into fights about spaces on planes.
- [04:21]
A
Well, part of it was the origin of the book was I fly around a lot to give talks and I'm always trying to work on my laptop and people lean their seats right back into me and squish the laptop into my chest. So I have a lot of experience thinking about, well, whose space is that? When someone leans back, does it belong to the person in front or the person in back? And my co author, Jim and I realized that that little interaction that we have all had so many times when we fly, that little interaction opens a window into the world of ownership conflicts that are all around us every day, every minute. It's where you live, it's what you drink, it's what you eat, it's the medications you take. All of that trace back to these very same simple few stories. And all those stories are sort of on display in that crowded, mushed, conflict ridden space which is the airplane seat. So just to give you a concrete example, there's a guy named James beach who was flying from Boston to Denver and he had actually a little plastic clamp called a knee defender, which you can buy online. It's really very effective. You stick it on the seat in front of you on the little tray table, and it keeps the seat in front of you from leaning back. So on this particular flight, the woman in front of him Tried to lean back. She couldn't. She realized what was wrong. She asked him to take them off. He didn't comply. She turned around and threw her water at him. The plane was ground. The pilot did an emergency landing. Right away, they were taken off. Plane went on to Denver. An hour and 38 minutes late. But those little knee defenders turn out to reveal a tremendous amount about the ownership conflicts that are all through our lives. The woman in front is saying, that space behind my seat, it's mine because that little button reclines the seat. So the back of the seat, that wedge, is attached to my space, and that makes it mine. And the guy behind, like the kids on the playground, he's saying, no, it was mine. I had it first for my laptop, or I possessed it first with my knees. So that wedge of space is an ownership battle, it turns out, between attachment and possession. And first in time. When I talk to audiences about that conflict, I always poll them, and it's amazing to me that invariably half 50% say the person in front is in the right, and half say the person in back is in the right. What's most amazing is how each side is just amazed that anybody else could have a different view. It feels and looks and seems so obvious what's mine the same way it is to toddlers on a playground. But that little conflict on the airplane seat is not just an accident. It turns out it's deliberately engineered by the airlines so they can sell that same space twice. Most of us are just polite. We try to work it out. And that's true in all of the ownership conflicts we go through throughout our day, throughout our lives, in the Starbucks line to line up at Disney World, anywhere that we're trying to make something mine, our experience is being engineered and designed by some owner to shape our behavior. Now, in the airplane seat, the design is to get us to fight with each other instead of being mad at the airlines to not realize that they're selling that same space twice. And what they're using is one of the most advanced tools of ownership design that Jim and I have uncovered in doing this work, which is what we call strategic ambiguity. Ownership is ambiguous a lot more often than people realize. And that ambiguity is really valuable in this case to the airlines.
- [07:58]
B
Yeah, the idea that this is left to the poor flight attendants to have to police because the airlines make no actual claims about it. And then the poor flight attendants who actually. There's no kind of dispositive resolution for them either. So it's really on their necks to try to litigate this, when you have, as you say, 50% of the folks thinking there's one property rule in play and 50% saying the other property rules in play. I guess I want to ask just one doctrinal question, which is how do you think about ownership in relation to the things we learn in law school? Whether it's property law or intellectual property, or is ownership a different word for property? Or is it broader in some way? In other words, give me a doctrinal definition of what you were trying to solve with the word ownership.
- [08:54]
A
Well, ownership is property, property is ownership. And both property ownership, in my mind and from years of teaching and working with students, is massively overrated. So one of the sort of punchlines that I always try to get across to my students and to lawyers I talk to is how much law itself is overrated in terms of shaping our actual behavior in our daily lives. So there is law for the airplane seat. Every airline has a rule, which is that the person with the button can lean back, but they are super deliberate about keeping that rule quiet. They do want the ambiguity because the ambiguity is quite valuable to them. So they do put the pressure on the flight attendants to solve it, and they often aren't sure of the rule themselves. So this is one of many contexts where there may be a rule, but the reality, the lived life, our lives all day long. We're not consulting law books, we're not talking to lawyers. We're just trying to get through our day. And as we do that, we're actually encountering dozens, hundreds of these ownership disputes every day, and we're solving them outside of the law. 99.99% of ownership disputes are outside of the law. It's sort of the opposite extreme. A little bit of your usual focus on amicus, which is sort of really precise meaning of what the Supreme Court is doing. It's part of why I've never been able to teach or even read a lot of Supreme Court cases, because they're so distant from the lived experience of people on sort of a daily life. Part of what I love about teaching property is that everyone knows if somebody else is mowing their lawn in the backyard and maybe they're making a claim to it or how you save seats in the movie theater. Like, that's the kind of really tangible conflicts that my mind can wrap around.
- [10:33]
B
Although I will say one of the surprises of your book for me was how regional everybody knows is. Right? So I had no idea I could put a napkin over my half finished drink. And in Some cities that signals to the bartender that I'm coming back. And in some cities it signals that I'm not coming back. Or, you know, we'll get to it in a minute. But the amazing snow removal wars as between Boston and Chicago in New York, I didn't know any of that. So it is interesting how in a weird way this is really local and regional. And even though there are no fixed rules, I guess if you're in Massachusetts, you know what the rule is, even though it's not necessarily a stated rule.
- [11:18]
A
Absolutely. So what you're talking about there is possession. And we have this instinct, we learn this as kids, that possession is 9/10 of the law. It's a language that we learn as little kids and it's a language that we're aware of every day as grown ups. Like when you go to the movie theater, what does the jacket over the seat mean? Everybody knows at the church or at a parade, you know what it means to save space. That's never the law. That's always outside the law. It's rules. It's very rule bound. People follow it and they break those rules at their peril. But those rules are very regional, as you say. Actually, it turns out they trace back to sort of our animal instincts. They trace back to birds and bears marking territory. So when you hear birds singing, you experience it as this bucolic, oh, it's so nice. Birds are out chirping, but what they're doing all day long is they're actually marking their possessions, they're marking their territory. And birds, it turns out, have regional accents just like people do, just like the language of possession does. So in Boston, when you dig out your car after a snowstorm, you put a chair in the street and people know not to mess with that space. And if they do mess with it, they're likely to find their car tires slashed or their windows broken or the car keyed. In New York, right where I live, you lose the chair and the seat if you try to save a space. So possession is a language, it's outside of the law. Often it's actually more powerful than law. People don't care what the law is. They care about the chair in the space.
- [12:51]
B
So before we talk about your maxims in the book, the one other thing I thought might be useful is to describe just for a minute, which of Burr MacDonald's children own his rocking chair. So here is a guy who dies, both his children want his rocking chair, and you posit a bunch of solutions that could conceive one grabs it first, the other takes them to court. Welcome to America. But you posit a bunch of possible solutions for determining ownership. So can we just walk through a minute, what, and again, this goes to court. But can you walk us through just the again, intuitive solutions for determining ownership.
- [13:40]
A
You're raising an actual case that I teach my students, and it's a very simple case. A dad dies, he leaves his rocking chair to his two kids, but he doesn't tell them how to share it. One kid grabs the chair, the other says, I want it. And the younger kid sues. They go to court. That's what we know about the case. It's a real case. In connecting with our theme today about law being overrated. There's no law. There's no law in that sort of hard corners of sort of dusty doctrines of property law. There's no answer to the question, how do you share that rocking chair? So you just have to decide. And there's a number of possible solutions. So you could, for example, flip a coin. That's how we solve disputes like this on the playground. You flip a coin and everyone says, okay, whoever calls it wins. That turns out to be the one rule, oddly, that judges can't use. It's automatically reversible error. They have to give a reason. So reason or chance is one choice we make about ownership, the playground versus a court. The other possibility would be to auction the chair. And then the person who's willing to pay more gets at the chair and the other kid gets some money. But that doesn't feel like a very good solution in this personal context, in the context of a family sentiment about this particular chair. But it's also always available in economic solutions. You could burn the chair. The sort of Solomonic solution which would tell people going forward has a very useful message to people. Don't bother the court with these trivial problems. Work it out for yourselves. You can make them change the chair back and forth every day or every year. That favors the kid who has more time to waste schlepping the chair back and forth. But here's the point, here's the punchline for that example, which is that there is no correct or natural or right legal answer. And that's true way more often than people realize what ownership is about, who gets what and why. These are value choices. Do we value chance or reason? Do you value money or sentiment? Do you value people who have more time? Like you have to make a choice. Do you value the court's time, the decision maker's time? So Part of what I like about that very simple example is that you don't need fancy law to figure it out. What you need is to consult your own own basic values and realize that in every case like this, you are making a choice. And if you're not choosing, if the two kids aren't choosing between themselves, then they're asking somebody else to apply their values to that choice. And they may be congruent with the kids and they may not be. And that is true not just for Burr McDowell's rocking chair. That is true for every ownership dispute. All day long, hundreds of times a day for your entire life, you're making choices. It often feels fixed and rigid. My students come to law school thinking that they're going to get this property case book and it's going to be like learning the phone book. There's going to be hundreds of rules and they're going to study them until they want to die. And the big message that I have for them is exactly what this example of this chair, which is that it's really about choices and about values and about you being an active participant in the ownership battles in your own life.
- [16:53]
B
And just to follow up with the ridiculously unreasonable question, Michael, is your intuitive organic answer that any of those are by default correct or it's just way too fact specific, contextual, relationship driven, values driven? In other words, you did not at the end of this book, come round to the spirit, burn the chair and let everybody learn a lesson.
- [17:20]
A
Right? So I do have a lot of priors. So for example, I think a lot of times a lot of what courts do and a lot of what law can do, I think, I think of law as sort of operating in the background of our lives. Relatively few of us engage with law in an active way in a daily way. But what it does do is send a message or can send a message. So the message sending value of law, I think is pretty, can be pretty important. So I would answer the question about the rock and chair by saying, well, what's the message that we can send going forward to people? So me actually burning the chair is not a terrible outcome because I do think a lot of these personal or the sort of Solomonic or going to burn the chair, you don't end up doing it in Solomon's example tells people going forward that they should really try to work things out on their own. Now that may not be the right answer always or in this particular case even, but that's the kind of way I would think about it. But the message for me is not that my I don't want to listeners of the show or readers of the book to come away saying, oh, this is what the answer is, because I really don't think that's right. I really think that's so much more of what it means to be an engaged citizen parent, consumer is to feel empowered, to make your own interventions, to make your own choices. And what I'm very much hoping to do with this book is to sort of open people's eyes to a world, to have people realize in some sense they're fish and they're swimming in water, to see that there are these very simple stories that people are using all around them all day long. And once they can see the stories, they can help make their own choices based on their own values. I don't think that my values as to the rocking chair should be in any way the answer.
- [19:09]
B
Let's take a brief little pause to talk about Slate Plus. Usually, Slate plus members have access to a special bonus segment featuring Slate's marvelous Mark Joseph Stern. And it's a time when Mark and I talk about court gossip and jurisprudential analysis and we talk about some top secret stuff that you would have to sign up to hear about. The bad news is that segment is on break over the summer. But the good news is all the benefits of Slate + membership never ever take a summer vacation. You still get ad free versions of all of Slate podcasts, bonus segments on shows like the Waves and political gabfest. And Slate plus members never ever hit a paywall on Slate.com even better, Slate plus members provide vital support for all of the journalism, all of the podcasting that we do here at Slate. It is only a dollar for your first month. There are more details@slate.com amicus+ and thank you as always for your support for the vital journalism we do. And now let's get back to our conversation with Michael Heller, one of the authors of how the Hidden Rules of Ownership Control Our Lives. So one of the reasons that this book is very fun is that you take six different maxims of ownership, things that we simply believe to be true, and turn them on their heads and show us how, in fact, more often than not, the opposite is true. And the one that you start with is first come, first serve the notion that it's my shovel because I picked it up first. If I'm in the sandbox, this is I imagine my teenage boys yelling shotgun right when they want to get the front seat in the car. And you start with one of my favorite examples, which is the paid line standards at the US Supreme Court, which I've been railing about for years. I wonder if you can talk a little bit about why it is that we have these notions that if we're at the front of the line we get first access and how it is that that has been thwarted and subverted by other processes.
- [21:33]
A
Well, first come, first served is one of the six basic maxims everyone uses to claim everything. Part of why it's so basic, it's ancient, it feels fair. Kids can use it on a playground, they know whose turn it is to be on the swing. So it often can be decided without a lot of policing. In the Supreme Court line standing case. If you want to go to a big case and you go wait in line, tickets are first come, first serve. You simply won't get in anymore. But you pretty much know how the line works. You're person 83 in the line and you'll get in 83rd. It turns out there might not be space for you. The people in front of you, it turns out today, are often paid to be there. People often pay thousands of dollars to companies who hire line standards. And what those companies have realized is that old fashioned first in time, just whoever lines up first leaves a lot of money on the table. That there are people who have a lot more money than time and they're willing to pay for the time of others. So a simple lining up, you know, like at a deli, you know, first in line, step on up, turns out to be a business opportunity for a savvy ownership engineer. And it's not just at the Supreme Court. If you want to get theater tickets or the hot new supreme sneakers or a new iPhone, any place where there's going to be a long line for something that's in high demand, you'll have entrepreneurs who are ownership engineers. So the real rule today turns out much more often than not to be first come, last served. I experienced this most dramatically going to Disney World with my teenage kids. And my kids are not, you know, they're pretty patient. But the lines can be, you know, hours long to get into a five minute ride. And it turns out that what's going on is that Disney has figured out how to itself engineer first in time. Not just some company hiring line standards at the court. But Disney said, hey, if there's gonna be money to be made, we Disney want to make it. So they figured out a fast pass system which gets people out of those lines they can get a time ticket for later in the day. And then rather than spending time waiting in line, they're spending money walking around in the food court. Disney then took the next step and they figured out there are some people like at the Supreme Court who are willing to pay a lot of money not to ever wait in line. And Disney created for them a special kind of super duper FastPass called a VIP guide, where if you pay three to five thousand dollars, you skip every line and every ride all day long. So the only people who are still playing by first come, first serve are the poor sweaty families who are lined up still for hours as people come around them through these other methods for getting to the front. Other versions of first that Disney came up with, now Supreme Court's line standing Disney. These are, they're outrageous maybe, but they're still fairly small examples. But that same redefinition of first, that's how America was settled hundreds of years ago. So the early courts in this country said, who does the land belong to? So when there were conflicts between people who claimed from white settlers and people who claimed from Native Americans, the courts decided, well, the way we decide this is who was first? And their answer was who was first was the white settlers, not the Native Americans. How can that be? And the answer is that who was first, first in time at the Supreme Court standing in line at Disney. And for who owns every piece of land in America, who was first is not an empirical fact. That's one of the hardest things to get across to my students is that first in time is an ownership story. Like possession is 9/10 of a law. It's a story. And we can tell different versions of what first means. So for America and American law, what first meant was the first to cut trees, the first to clear fields of stone, the first to do row agriculture, the first to make New England look like Old England. And in that sense, the settlers were first.
- [25:34]
B
And can you just staying with this first principle for a second, talk a little bit about Duke and tickets? Because for me, it's a really good example of the thing I think you just flicked at with Disney, which is why it's in the interests of the real owners to thwart the first come, first serve.
- [26:01]
A
Right? So one of the messages that we have from this book is that each of these maxims, they're so intuitive, actually instinctual, that they're the things kids know. It turns out every one of them can be engineered and re engineered for the ultimate owner's purposes. So for Disney, it's basically moving people out of line, spending Money capturing that surplus from the lines that they have created at Duke. If you want to get a basketball ticket, you can't just show up first. They don't want that to be the method. Because what they want, the real value for Duke, for Duke basketball, is these crazed blue face painted fans who stand and scream for the entire game. It makes great television. And that great television brings a lot of money into Duke and it brings great recruits into Duke basketball. So the question for Duke, Duke was how do we use tickets to the basketball game to get the most crazed fans? And the way that they figured that out was not waiting in line, it was having something called camp out. Students camp out for two months, for two months, for a two hour game, for the hottest game of the year, which is the Duke UNC game, grad students camp out for long periods of time to get a section of tickets right near the, right near the hoops at the end of the court. When they go through those lotteries, when they go through those camping, waiting, sitting around for weeks or months, it doesn't necessarily even guarantee them a ticket. It's all just, you have to be a super fan to get that ticket. And once you get one, you wouldn't sell it for any price. So what Duke has figured out how to do is how to use its ownership like a remote control. And that's actually how I think about ownership, is that owners are using their ownership like a remote control to push you around, to steer you to do what they want all day long. That's what it means to be an ownership engineer. And companies like airlines with airplane seats, or Disney with its lines or line standing company at the Supreme Court or Duke with basketball tickets. Those are just small examples of the power of ownership to steer you quietly and invisibly to do something that somebody else wants you to do.
- [28:23]
B
Yeah, I think for me, the through line for so much of this is you and I. Regular people are having increasingly heated disputes about which of us owns something, including that tiny wedge of space on the airplane. But the actual owners in the airplane context are selling it to both of us and then backing out of our dispute. In other words, we have this illusory ownership interest, but the real owners who are adding more seats to planes and making that wedge of space ever smaller, actually have some vested interest in not resolving the dispute and allowing us to jack up our own, as you say, deeply held, deeply felt, visceral senses that we have some ownership interest where in fact, it's just they're profiting.
- [29:19]
A
Right. And that's true not just in settling of America and also in airplane seats. So it used to be airplane seats were 35 inches apart. There was plenty of space. Airlines have been shrinking what's called the pitch. It's the space between seats. It's down to about 28 inches now. Each time they push us an inch closer, they get to put six extra seats on the plane. So it's actually quite valuable to them to shrink the pitch. And they're able to do so because the FAA decided, which is an ultimate regulator that could have said, no, you can't do that. They allowed the airlines to keep shrinking the pitch. And as they do, that wedge of space becomes a more valuable resource. Now, again, the wedge of space is a pretty trivial example, but let me just give you, show you what the stakes are here. So the wedge of space is the exact same fight that we're having today online around our digital lives, around our click streams. When you click around, you buy, you know, a plane ticket to Chicago for the weekend. For the next week, you're getting ads anywhere you go on the web for this Chicago hotel or that restaurant. And the reason for that is that you're being tracked constantly for everything you do online. And that's all being sold. So who owns the most really intimate details of your life? Actually, it reveals a lot of things about you that you may not even know about yourself, about health conditions, about how you vote. All sorts of things about you, very private, are collected and sold to advertisers. So what Facebook says is all that clickstream attaches to our apps. It's just like the button on the airplane seat. And they actually use another story, labor, which is a fourth story we talked about. First in possession attachment. The fourth of those six stories is labor. We work to create value from that clickstream. So therefore it's ours. We should reap where we have sown. And that feels pretty natural. It feels like a, you know, you may not agree with it, but it's like it's a plausible ownership story. And part of what we want people to see is that we're like the, you know, James beach in the seat behind. And we have our own ownership stories that we can push back with. We can say no. That data, our clickstream, that's so personal. It comes from my body, our bodies, ourselves, self ownership. That's the fifth ownership story of the six. So it is possible for us to push back with self ownership or to use possession. I'm holding onto it, or first. So our message is that, you know, the wedge of space may seem very simple, but it's the same dispute today we have over a really important resource which becomes more valuable as it becomes more monetized, like our clickstreams. And it's the same six stories that are at play for data as they are for that wedge of space. And we have the same ability to push back there individually as consumers and sort of globally as engaged citizens, saying, we want a different relationship with that data.
- [32:12]
B
So this leads me to the obviously vexing part of this, which is, and I think descriptively, you're correct, you end up with just a fight about narrative and a fight about stories. And you talk about how that really does inflect on the Trail of Tears and Native American land rights. It inflects on what happens when former communist countries start to divvy up private property. Again, this is the fight between the Israelis and the Palestinians. You end up with two competing narratives that may use a different principle, but each asserts mine. And I guess the question is, what do you do when you arrive at the place when you realize these are simply competing narratives? I mean, what. And I know you're going to say, this is exactly why it's beyond black letter law, but what are you to do if you get to the place where you say, you know, you're telling story one, I'm telling story four?
- [33:10]
A
There's a couple answers here. First, I want you to know those stories. Like the, you know, HBO knows its story when it says, we're actually going to tolerate, even encourage people to steal our passwords. There's a lot of password sharing out there. HBO does that deliberately, so they know that story. Disney knows these stories. When they engineer ownership to maximize their profits, the airlines do as well. So they know the stories. And my first goal is to say, you should know them, too. You should understand that you're not just sort of in the current of the ocean, but that that water actually is being directed by owners who know what they're doing in many cases. So that's point one. Point two is, as an individual consumer, there are things that you can do about it. So to stick with the airline wedge. But this is true for all of the examples. There's been some studies done about, like, how do you get people not to lean back into you if that's what you want? And it turns out that offering to give them a 20, the person in front don't lean back doesn't work so well. This is actually news your listeners can use. Offering a 20 doesn't really work. Asking Them, you know, don't lean back. Doesn't really work either. But what really works about 75% of the time is offering to buy a drink or a snack for the person in front and saying, hey, listen, let me buy you a drink if you don't lean back. That usually works. And the reason is that people don't want it to be a monetary relationship and they don't want to just be doing you a favor. But the notion of a sort of a community breaking bread together, sharing the drink actually is pretty powerful. And it is a way to keep people out of your lap on an airplane. So as an individual, once you understand how ownership works, you can begin to change the story. As a citizen, you can as well. Once you see that the real decision maker here is the airlines. It's not a given that the FAA doesn't regulate airplane seats. It's a choice. It was actually only finally decided in 2018. And as engaged citizens, we can push back. We can say this isn't a choice that we as consumers and as citizens should have to live with the being squished in this impossible way in actually ways that are unsafe for many people who are traveling and squished together. But we need to understand the stories to push back. Same with Facebook. So often data online is talked about in terms of privacy. I think that's a very partial frame if you think about it in terms of ownership. Ownership includes concerns about privacy. But we can also flip the narrative that this is our data and we should get paid for it. We should get paid to give up our privacy. And as citizens, we can push for that. But 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.
- [35:56]
B
I love that because I think it helps kind of elevate this out of just a rightsy discussion. Who has the right to. Which, as you opened with, is not going to get us all the way there into a solutions based or at least a conversation about solutions. I wonder if you could talk a little bit about, I guess it's your third maxim, I reap what you sow. Because that really starts to scoop in very American notions about labor and adding value. And it's mine because I built it. And you talk a lot about copyright and intellectual property. And again, I think it's sort of intuitive that Martin Luther King and his estate own the rights to the I have a dream speech. It's also, as you point out, just led to Immense, immense intellectual gridlock in the country. So maybe weave that into the other big stories that we tell.
- [37:01]
A
Great, so you reap what you sow. It feels so powerful. It goes back to the Bible. And that instinct turns out to drive a lot of intellectual property law, patents and copyrights. That's part of the intuition behind why we reward inventors with monopolies over the knowledge that they come up with, while we reward authors with copyrights with a form of monopoly over their expression. I'm skeptical that much of that legal world of ownership actually makes the world a better place. Most patents actually destroy value in this country. Very few of them actually increase value. The overall patent system in this country could be eliminated with almost no loss, actually with probably some gain to the American economy. And copyright in this country, we have way too much copyright. It lasts far too long. It's granted far too easily. So let me give you the counter example of that which is the world of fashion. Fashion exists in a world with no copyright. Fashion designs are freely copied. You have Splurger steel columns in Cosmopolitan showing the original couture item and the Forever 21 knockoff. That's $21. And yet fashion hasn't ground to a halt. So fashion turns out to be one of our most innovative industries and it operates in a world wholly outside of copyright. That's a world where I reap what you sow. And once you begin to sort of look at innovation and creativity through the prism of fashion, you see that there's many different ways for people to be creative and to protect creativity without law. It's not just true for fashion sports for coaches. New plays aren't copyrighted or patented, and yet people come up with new plays all the time for soccer, football, for whatever sport. Comedians, jokes aren't protected, and yet comedians are still telling new jokes. Chefs come up with new recipes. There's a tremendous amount of innovation that happens, and this is true even in the high tech world outside of patent and copyrights. This is one of the most powerful areas where you can say with some confidence that law is overrated and that alternative methods of policing, like shaming people who copy your design, or being first, like Bloomberg with his terminals, which provide traders information a little bit ahead of somebody else being a first mover. Shaming, secrecy is another important one. There are all sorts of alternative ways to protect creativity other than through law.
- [39:29]
B
We'll be back in just a moment with more from Michael Heller about this fascinating new book, Mine, which he co wrote with James Saltzman. After some brief messages from our sponsors and I want to just in keeping with news you can use theme of this show. One of your again big maxims is your home is not your castle. That you have ideas about what is encompassed in your home ownership. Maybe you could just tell our listeners what happens if you try to shoot down your neighbor's drone as it flies over your property.
- [40:07]
A
This is actually a pretty straightforward one. Don't do that, don't do that, don't do that. Don't be shooting down drones. But that question actually raises a pretty deep question. So when you buy a piece of land, a piece of land is basically just like your airplane seat. Like your airplane seat is a piece of paper with a seat number. And the seat number doesn't tell you how far up or down or forward or back your seat goes. So it doesn't answer the question like whether the wedge can recline or not. It doesn't answer like who gets the armrest. Like it's just a sheet of paper. Everything else has to be attached to that two dimensional plane. And the same exact thing is true for your house. But you have a two dimensional deed, a sheet of paper, and we have to decide what other resources attach to your land. Up, down, in and out and on. And each of those is a choice. And they're all up for grabs. When planes first started flying overhead 100 years ago, landowners sued for trespass. The plane 10, 20,000ft up was in there. What they understood to be their column of air that went up to heaven and down to hell. Of course had to say, no, airspace that high up is not attached. Anything above 1,000ft is not yours. But they didn't say what happens below 1,000ft. So drones are just like the wedge of space or just like your data online. It's a new resource that we have to figure out. And there's no correct or natural or obvious or legal answer to that question. It's just a choice about do we want to have people not having drones with cameras over their land at 100ft up on the one side and on the other, do we want UPS and Amazon and pizza chains to be able to deliver pizzas using drones instead of cars that traverse a bunch of people's property? So you actually have a battle right now going on over, over how much space and in what way does air attach to your land? So that's again a fairly small example. But we're going to have a, it is potentially a billion dollar industry. The same problem comes up with windmills. You know, if I put A windmill just upstream from yours, your windmill won't work anymore. So there's wind wakes just like there are boat wakes. So we have to make choices about wind, we have to make choices about solar. Can I block your solar panel or not? That's all in the same plane as the drones. And then underground, it's the same debates about flowing water and oil and all of these are. You say, I own my home, my home is my castle. But it turns out your home really is not your castle, because each of those resources up, down on, are very much up for grabs and controlled much less decisively than people ever think.
- [42:47]
B
We've talked so far about how there's not enough law. But one of the things that you pull up, particularly with respect to race and land ownership, is when there's too much law. Can you talk about that a little bit?
- [43:03]
A
Sure. So in many of the contexts, law is overrated. But there are a couple areas where law really matters in ways that people just don't realize. So let me give you two examples in North Carolina and in South Dakota. So after The Civil War, North Carolina African Americans freed slaves, started buying land in earnest. 100 years ago, there were a million black farmers in this country. Today it's under 20,000. It's a 98% drop. A lot of that is caused by racist violence in the south, by racial discrimination and lending. But much of the story is a hidden story of ownership. When farmers died without wills and the ownership was split among children and then split and split among generations, over time, the land became unmanageable. And southern white lawyers often realized they could buy a 1,1000th share from an heir who had moved to Chicago, force the sale of the entire farm, which was a cash sale on the courthouse steps, a so called partition sale, and pick up the farm for almost nothing. So a lot of black families have had their farms just lost through the so called partition sales through an accident. A quirk of the harshest sort of American ownership law. It doesn't have to be that way. And in many European countries there's rules for how to share ownership that actually make it possible for the families to stay on the farm. Actually, some American states in the south have now begun to adjust those rules for the very small number of black farmers who are still left. But this form of ownership has been the source of wealth destruction for black families in ways that are mostly invisible. That's North Carolina. South Dakota is the exact opposite. It turns out in America we have a different parallel legal system for the super wealthy not metaphorically different legal system, an actually different legal system. So for those of you who think South Dakota, you might think Mount Rushmore. But the real sort of specialness of South Dakota today is it's become the world's leading money haven. It crushes Switzerland and the Cayman Islands. If you're super rich, you already know this. If you're not, it may be a surprise, but South Dakota has created a way for the super wealthiest never to even visit the state. They basically advertise themselves to wealthy New Yorkers and Californians and say, hide your money here and you'll be free from responsibility. If you hit someone with a car, we'll shield you from paying the tort judgment. If you defraud your business partners, you won't have to pay them. You can stiff your spouse, you can stiff your kids, you can stiff the government. South Dakota has become a magical place for the super rich. Not the 1% for the 1% of the 1%. So these are areas South Dakota for the super wealthy, North Carolina with a super harsh rules for African Americans where law really matters and in ways that are often invisible to those of us just going through our daily lives.
- [45:56]
B
So this brings me to your conclusion, which perhaps our listeners might not be faulted for being slightly depressed having listened to us talk. Because it does feel as though so much of what we believe we own is at the mercy of the real owners. And that just as Amazon can zap a book off my Kindle, just as the airlines can take tiny fragments of space away from me, and just as we think we own the space above and below our homes, we may not. We have contracted away a lot of ownership rights and we have also allowed Mickey Mouse to be the product of Walt Disney forever and ever. One of the things you arrive at, I think in your conclusions is that at least part of the way out here is to start to think more seriously about scarce resources in the sharing economy. And the example you give is, which I will let you describe, we don't all need a damn drill. We just don't. Is that the way through? Is it to stop think? I mean, I realize I sound like I'm advocating for rank communism, but is the way to stop thinking about ever more positioning ourselves into these rights based conflicts about ownership to think more expansively and capaciously about sharing?
- [47:40]
A
I love sharing. I'm a big sharer. But I'm also, I want to back up a second here, which is this. Dalia, I'm a real optimist. I hope it worries me. It Worries me that you came away feeling a little sad or depressed about the state of ownership. I think just the opposite. I think that once you see how ownership works, it's actually kind of cool. And it really isn't about rights. It really is mostly about politeness and manners and sharing and community. And a lot of how I think about ownership, a lot of the way the ownership works is to constitute and create those communities. I actually think the sharing economy isn't a great example of that. People sometimes talk about the sharing economy as being the end of ownership. You don't own a car, you don't own a house. I don't really view it that way. I view the sharing economy as a sort of a hyper concentration of ownership in a very few concentrated hands. My cell phone, for example, is really just a metal brick. You feel like you own your cell phone, but you own almost nothing in it. If you're not paying the fees, your photos disappear, your texts disappear, your email disappear. Basically everything disappears. So what you basically have today in the world of the sharing economy is a stream of ones and zeros that you license in this very ephemeral way. Online possession is one tenth of the law, not nine tenths. When you click that buy now button, it doesn't mean what you think it means. You think you own something. Most people believe that when they buy something online, they own it, just like they own a physical copy of a book or a cd. And that's just not true at all. There's a big gap between what people feel like they own and what they actually own online. So maybe let me be a little bit of a contrarian here. I want to put a plug in for just old fashioned physical stuff. I think there's actually a real spiritual connection that we have with stuff. I like to cook a lot and I have old cookbooks from my parents. And they actually are quite meaningful to me to sort of see the stains on the pages. I have cookbooks from decades ago. I remember the dinner party when I cooked that meal. And that feels very different from idly hitting buttons and cabinets, having grubhub send something to me. I also don't really want to live in a world where I rent my engagement ring and lease my dog. I think that the old fashioned tangible physicality is still quite important even in our new hyperlinked world.
- [50:05]
B
Could you unpack for a minute, Michael? What the difference is between the stuff we own in real life and the stuff we buy online. So I was sort of flicking at what happens when a copy of A book you thought you owned on your Kindle simply vaporizes. It's not actually yours. Can you help understand that?
- [50:26]
A
Yeah. So let's go back to where we started today, which is kids on the playground. When you hear kids shouting, mine, mine, mine. And you go and find out what they're fighting about. They're pretty much always fighting about a shovel or a toy, some food. They're never fighting about a joke or a song. That was my joke. When kids learn about ownership, the way their brains are structured and we as adults are structured, light up and respond to the physicality of ownership. So that possession is 9/10 of a law notion, actually, which traces back to the oldest known legal code, the code of Hammond Arabi from 4,000 years ago. The actual person on the land got it, not the person who legally owned it. After some time, that physical possession, that instinctual urge that we have doesn't translate very well to our online lives. So that when you think about, like the little shopping cart on Amazon or the Buy now button, those have all been very carefully designed by Amazon, by the online retailers to mimic, to evoke, to make us think of our physical attachment, to light up that part of our brain. But what we're actually buying when we do download something is something different and less than the Buy now button and the shopping cart means. So we think we're owning the book. And there's a recent study out of University of Pennsylvania showing exactly this, that about 85% of people do believe that they own the book in the exact same way as if they have a hard copy. But Amazon can't come into your living room and pull the book off your shelf if you don't follow through on some payments thing. But they absolutely can on the Kindle, and they have. Bizarrely, one of the books Amazon deleted was 1984, Orwell's dystopic vision of exactly this world where the government could have a retailers could have that kind of control over your life. So it turns out that today, as we've moved to this online world, this world of possession as one tenth of the law, there's this big gap between what we feel like we own, which traces back to those animal, childlike, primitive, powerful possession instincts and what we actually own, which is different and less. And because of that gap, online retailers get into an unearned premium, an extra profit on every download.
- [52:57]
B
And I want to just take a second and apologize for my grim view of life. I don't want to suggest that everybody is going to read mine and be Depressed. I think at this moment it's possible that I could read Pat the Bunny and be depressed. So don't. Please don't impute grimness into it. I wonder if you could just by way of taking us back to where we began. It does feel to me as though, and I think you've said this expressly, Michael, one of the solutions to so much of this is to have private arrangements and reordering and courtesy and civility rather than keying someone's car because you've put out a chair or a red cone and you think it's. It's your parking spot in Boston. Does it feel to you as though some corollary to the conversation that we are having right now, which is even though we are in a very miney rightsy world, we're also in a very interconnected world where we can at least talk to each other and come to private arrangements that don't require shooting each other's drones down. Part of, I think the way through this, as you've said, is we name it. We understand that we have these reflexive feelings about property that may be wrong. We test our competing narratives. But also the mere act of a kind of shrinking informational world could get us to places where, at least I think you're saying we could. Even if Mickey Mouse is forever owned by the Walt Disney folks, we could split up every. Everything else.
- [54:36]
A
I think that's right. I think that we are. We have to get through our days, and we mostly do get through our days without, like, bumping into other people. And we mostly do sort out who gets the, you know, latte first at the coffee shop. And we mostly do sort out, like, how to park and where to park. You know, our. A lot of what it means to be a grownup is to be socialized into language. And a lot of that language is the language of ownership. So what I hope people come away with is feeling like a little more empowered, a little more of a sense of, hey, I didn't realize as I was walking down the street that this was an ownership, hey, look at that. Here's food trucks on the like, why are there food trucks in Portland? And why aren't there food trucks in Chicago? What's going on? Maybe there's an ownership story there. And it turns out for food trucks, there is. It's a first in time story about who counts as first a bricks and mortar restaurant or the truck that parks there first that day. Who gets to decide what's first for that? And that decision about first Means that some cities have super vibrant food scenes and other ones don't. So my hope of people reading the book is that they begin to realize that just the world around them looks a little bit different. It's like a lot of it, more of is engineered and designed in ways around ownership, that we're there sort of going with the flow. And if they're a little more conscious about it, you can say as you're in line, God, I wonder how many of the people in front of me are being paid to be here. And I wonder what that means about democracy. What does it mean about democracy to have a world where only the wealthy get to see Supreme Court arguments? Is that the world they want to live in? Maybe we should change the rules for who gets in to hear cases. Maybe cases should be streamed or broadcast in some other way. So it makes you sort of, I hope, a little more aware that there's, you know, that the sort of architecture of your daily life is a little more open ended, a little more up for grabs than people realize. And I'm pretty confident that whatever day your listeners are listening to this podcast, there will be a front page story that snaps into focus that really suddenly makes sense. If you say, hold on a second here, here's one ownership story, first in time and here's the other attachment or labor. And I see what's going on. I see the dispute here in a new way and maybe I can do something about it as well.
- [56:45]
B
Michael, I can't let you leave without pointing out that my recollection. You'll check me if I'm wrong on this. Is that the way the Supreme Court resolved the line standing problem after Obergefell, the marriage equality case was that they said it would be unseemly for people in the bar line, for people who are members of the bar to pay line standards, who, as you may have noted, some of whom were homeless people and unerringly were people who desperately needed the money. But that the regular public could continue to pay line standers. What does that say about how the Supreme Court splits the baby on what they think about first come, first serve?
- [57:31]
A
Yeah, well, it's the same as Duke basketball, right? So what you have is the ultimate owner in that case, ultimate controller of the resource. The Supreme Court itself trying to enact case have a line that a version of first in time that feels right to them doesn't feel right to me. So partly, lawyers can go buy tickets. Spaces, not tickets. They can have homeless persons stay in line for them in the public line they just can't pay to have someone wait in the lawyer line. And one of the things the Supreme Court did during the pandemic is they started live streaming the audio of cases which they had always refused to do. That was a huge step in the right direction and they should video stream it or they should do something else. They should charge for those tickets. I don't mind charging. Maybe they can charge $6,000 a ticket the way they charge for lobbyists and use that money to bring in high school tour groups or use that money to have public education, or use that money for some other way that's actually public spirited. The version they have now is sort of the worst of all possible worlds.
- [58:29]
B
Michael Heller is the Lawrence A. Wein professor of Real Estate Law at Columbia Law School, where he also serves as vice dean. He is author of the Gridlock How Too Much Ownership Wrecks Market, Stops Innovation, and Costs Lives. The book we're discussing today, co written with James Saltzman, is called how the Hidden Rules of Ownership Control Our Lives. It is a really fun and I think kind of paradigm shifting read. So, Michael, thank you so, so much for being on the show today.
- [59:00]
A
Nalia, it is really great to be here with you. It's so much fun. Thank you so much.
- [59:06]
B
And that is a wrap for this episode of Amicus. Thank you so much for listening in and thank you so much for your letters and your questions, your comments. You can always keep in touch@amicuslate.com or you can find us at facebook.com amicuspodcast and if you can do rate us and leave a review on whatever you may be listening on. Today's show was produced by Sara Burningham. We had research help from Daniel Maloof, Gabriel Roth is editorial director, Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate Podcast. We'll be back with another summer blockbuster episode of Amicus in Too Short.