An untimely review: Mine! How the Hidden Rules of Ownership Control Our Lives by Michael Heller and James Salzman (Doubleday, 2021)

Those of us who teach and research in property law and adjacent fields delight in torturing students and journal referees with painstaking analyses of doctrinal esoterica, from the rule against perpetuities to equitable tacking. We take particular pride in tracing such rules rule back to the 13th century law treatise known as Bracton which, as everyone knows, was not written by the 13th century jurist Henry de Bracton.   

Explaining complex legal doctrines is something that academic property lawyers should do. However, it is arguably not all that we should do. In focusing on complex doctrinal disputes ventilated in final appellate courts, we can forget that “property” is not confined to recondite arguments over the “lease/licence” distinction or the nature of a beneficiary’s interest in trust assets. Property is all around us all the time, encompassing every interaction that occurs in “the shadow” of scarcity, from the allocation of courtside seats at collegiate basketball games to the use of genetic data in the development of modern medicines. What binds these apparently disparate cases together is the need for a set of rules that allows for the peaceable acquisition, use and transfer of valuable resources.

Given our aptitude for institutional design and ability to distil complex systems into a handful of simple rules, it is a shame that we lawyers often withdraw into the realm of technical detail, abandoning the field of public debate to economists, psychologists and other social scientists. Happily, the publication of Mine! How the Hidden Rules of Ownership Control our Lives marks a reversal in this trend. Co-authored by two property professors, Mine is the property lawyer’s answer to Freakonomics or Nudge, bringing a distinctive “lawyer’s-eye-view” to public debates about a myriad of property puzzles. Whilst most academic readers will be aware of the material drawing on Heller’s ‘tragedy of the anticommons’ and classics such as Pierson v Post (the famous fox) and Popov v Hayashi (the famous baseball), many will be unfamiliar with the discussions of beachfront property in Florida, efforts to improve drinking water in New York City and, excepting viewers of The Deadliest Catch, attempts to efficiently and safely manage a crab fishery in the Bering Sea.

Apart from aiming to provide a generalist audience with the essence of a JD property course ‘without the big tuition bills’, Mine! attempts to two defend two interrelated claims. The first is that all claims to scarce resources are justified by an appeal to one or more of precisely six “ownership stories”. They are:

1. ‘First come, first served’ (first in time, better in right);
2. ‘Possession is nine-tenths of the law’ (possession is a root of title);
3. ‘You reap what you sow’ (Lockean labour-desert);
4. ‘My home is my castle’ (some combination of the “attachment” and ad coelum principles);
5. ‘Our bodies, our selves’ (Lockean self-ownership);
6. ‘The meek shall inherit the earth’ (the law of succession).     

The second is that this list of stories, whilst exhaustive, is never definitive. A claim to ownership based on an appeal to labour can, for instance, always be challenged by an equally convincing but incompatible claim based on self-ownership. Consequently, ownership rules are never natural, inevitable, or pre-conventional. Instead, the ‘hidden rules of ownership’ are always fashioned, however subtly, to benefit someone or something.

The authors neatly illustrate their theses with the bane of economy-class air travel: the reclining seat. Whether reclining one’s seat during a short flight is the exercise of a sacred right or an act of gross selfishness divides public opinion. On Heller and Saltzman’s telling, each camp defends its position by an appeal to conflicting ownership stories. The passenger who reclines her seat claims the space by an appeal to “attachment” (or what Anglo-Australian lawyers would call “accession”). Because the reclining button is attached to the arm of her seat, the arc of space through which the seatback moves is hers. By contrast, the rearmost passenger, whose knees are pushed somewhere under her chin, makes a contrary claim to the disputed zone through a combination of possession and ‘first come, first served’.

Putting aside the merits of the competing ownership stories, the fascinating question is why airlines would deliberately create ambiguity about the “ownership” of the border zone between the two seats. After all, the clear message to emerge from law and economics is that property rights should be clearly delineated in order to avoid these very sorts of wasteful conflicts. It is, in other words, far better to trade than to fight. The answer given by Heller and Saltzman is ‘strategic ambiguity’. By declining to delineate rights in the disputed zone between the seats, the airlines can cram more passengers into economy class by selling the space twice. What is more, the cramped conditions in “cattle class” make the airline’s more spacious, and expensive, offerings in the front of the plane more appealing to frustrated passengers. The airlines thus capture the benefits of selling the space twice whilst, for the most part, imposing the costs of dispute resolution on the passengers.

Another illuminating example is provided by Duke University’s unusual method for allocating courtside tickets to its basketball team’s home games. The simplest way of allocating the tickets, for which there is enormous demand, would be to hold an auction or charge the best approximation of the market clearing price. After all, willingness to pay is the basis on which most markets are organised. An alternative method is to issue the tickets on a ‘first come, first served’ basis. This could be done either through a digital queue that can be joined via a computer from the comfort of one’s sofa or through an actual queue, requiring loyal fans to camp outside in the wind, rain, and snow. Duke prefers the latter, more unpleasant, method. Why?

Whilst waiting may be a more accurate proxy for subjective desire than willingness to pay, the Achilles heel of rationing by queueing is that, unlike a money price, a time price creates a deadweight loss. The vendor does not benefit from the hours that the purchaser spends in the queue. Duke, however, sees things differently. Putting fans through the ordeal of camping out for several days is not a loss, but a bonding exercise that fosters a sense of camaraderie and school spirit amongst students who are more likely to become generous alumni after graduation. More importantly, discriminating between fans by “willingness to camp” accurately selects for the sort of fan that Duke would like to occupy the highly visible courtside seats. Whilst a willingness to pay model may please wealthy alumni seeking a prime seat, it is unlikely to create the desired courtside atmosphere. Unlike a 22-year-old who is prepared to brave three nights with nothing but a sleeping bag and a case of beer, middle-aged bankers typically decline to paint their torsos in school colours, don silly headgear and scream for the home team until they are hoarse. To answer the question posed above, Duke’s method of ticket allocation is not an exercise in mild sadism, but a cleverly designed allocation mechanism that maximises the value of its basketball programme.             

At this point in any review, it is customary to offer a few mild criticisms of the book in question. Academic readers may point to the lack of analytic rigour in the discussion of ownership or the vague and open-ended nature of the ownership stories which, according to the authors, underlie all ownership claims. One also wonders whether some of the ownership structures discussed by Heller and Salzman are not so much Machiavellian as misguided. To return to the airline example, the creation of deliberate uncertainty about seat space creates an unsatisfactory travel experience for both the “recliner” and the “reclinee”. Passenger resentment not only creates opportunities for competitor airlines but, when it spills over into actual conflict, requires the intervention of airline staff and creates costs, reputational and otherwise, that must be borne by the airline. Whilst airlines undoubtedly sell the border zone between the seats twice, one wonders whether their policy of “strategic ambiguity” is ultimately self-defeating.

These are, however, mere quibbles. Mine! does not purport to engage in analytic disputes over the nature of property; nor does it need to. It is aimed at curious members of the public who want to know if Amazon really can “disappear” books from your iPad, why Netflix tolerates password sharing and when Domino’s will begin delivering pizzas by drone. To describe Mine! as a mere “trade book” is, however, to do it a disservice. Quite apart from being a fascinating and highly readable account of the ownership rules that shape our daily lives, it is a timely reminder of the unique contribution that property lawyers can make to some of the most important debates of our time.