Advisory Opinions - What's Mine is Mine

Episode Date: February 23, 2023

Judgmental looks. Angry scoffs and murmurs. Maybe even kicks at your back. All because you dared to recline your airplane seat. But isn't it your right to recline? Sarah and David charge into this heated -- and ever urgent -- legal question about ownership with Michael Heller, Professor of Real Estate Law at Columbia Law School, and James Salzman, Professor of Environmental Law at UCLA Law School, about their book Mine!: How the Hidden Rules of Ownership Control Our Lives. But first: SCOTUS updates and the disappointing sizzle of the anticipated Section 230 case. Show Notes: -Gonzalez v. Google, Section 230 case -Supreme Court hears oral arguments in Twitter case -Supreme Court denies Wikipedia and NSA case -Onion amicus brief -Mine!: How The Hidden Rules of Ownership Control Our Lives Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to another episode of Advisory Opinions. And today we have a special guest. I'm your host, Sarah Isger, and special guest, David French. Well, okay, we also have some other special guests. We'll get to those in a minute. David, thank you so much for joining us. It's a real privilege and honor to be here, Sarah. I so appreciate it. Plenty to discuss today. SCOTUS is back with a

bang. So we're going to talk about the argument from this week a little because it's kind of paired with another argument. Cert denials flying. We've got some DEI training to talk about. And finally, the text of the Florida defamation bill is out. And then we'll get to our real special guests. So David, the Google Section 230 oral argument actually happened. Boy, we've been waiting for this. I mean, for the tech term, feels like we're just getting to tech here at the end. This, by the way, is the first case. The second one will be the Twitter case. This one is about whether Section 230, C1, of the Communications Decency Act actually applies when you're promoting, recommending content rather than just engaging in sort of the traditional editorial functions like displaying or not displaying content. And it was a long argument.

And funny enough, we had a dispatch staffer who spent the night, camped out for the argument. He was number 47, did not get in. 43 people got in. He got there just for those playing at home. I could check. I think he got there about 12.45 a.m., and it was just not soon enough. It was a cold, wet night for camping. Let's see. David, what were your big takeaways? I have the perfect analogy. Are you ready? You may not be old enough to remember this moment, Sarah. Do you remember Geraldo secret of Al Capone's vaults. Okay. It was long. It was supposed to be big. It was going to be really important.

And then all of a sudden he breaks into Al Capone's vaults. And I, as best as I remember, it was a bunch of ashes and dust and nothing much more than that. Trash. And I had that feeling about this argument in this sense. This was going to be the beginning of what we've called the tech term, Sarah. This was going to be a serious judicial look at Section 230. A lot of hype, a lot of attention.

There was a ton of sort of in the tech law world, there were a ton of live blogs unrolling as the argument went. And it became apparent to me pretty quickly. Now, I could be surprised about this at the end of it, that the justices were like, yeah, I don't think we want to really do anything super important here. This doesn't seem to be what we need to be doing. I think the quote, there's two quotes. One that I think sum it up, and one is from Justice Kagan, and where she said, we're not like the nine greatest experts on the internet, which was really good. And then here was the other one, Justice Alito to counsel for Gonzalez.

I'm afraid I'm completely confused by whatever argument you're making at the present time. So my takeaway was a lot of buildup for something that is going to turn out to be not very substantial at all because the justices took a look at the arguments and said, whoa, wait a minute. What you're asking us to do sounds really Congress-y. So that's exactly what I was going to underline, very Congress-y. And when it comes to Section 230, whether you're making a common carrier argument

or you're making this promotion argument, the problem you run into is the actual language of Section 230 and that Congress had the option to do any of that. And they still do, by the way. And so let's take common carriers, for instance. Common carriers are a creation of Congress. There's basically, you get something, you give something. We're going to treat you like a common carrier. And in exchange, you get some protections from Congress, which sounds a lot like Section 230, except it's all protection and no strings. I think there's an interesting debate to be had, and maybe one that we'll have, you know, later on about whether you could attach those strings to Section 230. There's such a thing as called unconstitutional conditions. Congress can't always attach strings to everything.

But nevertheless, they didn't even try. And I think what I heard the most of was the court saying, I don't understand why we're even here. Congress could have done this. They could do this. They haven't. Why would we change Section 230? This all seems pretty cut and dry. And then, you know, Justice Alito at one point, for instance, you know, was kind of cranky about what some of the social media companies are doing. Justice Kavanaugh follows up and says, I want to follow up on Justice Alito's question. Kavanaugh follows up and says, I want to follow up on Justice Alito's question. None of that is at issue in this case, correct? So I agree with you that you're looking at potentially even a 9-0 opinion with maybe a cranky concurrence from Justice Alito, maybe a

roadmap advisory opinion from Justice Kavanaugh, although that I kind of doubt. But there just didn't seem to be a whole lot of actual disagreement from the court about what was at issue. Now, there's a bit of a thing worth discussing here. Online appellate Twitter, I thought was sort of unnecessarily mean to one of the advocates. So the advocate who was up first for petitioners, Gonzalez, people didn't like his argument. And here at AO, I think we work pretty hard not to beat up on someone for an argument unless like they seem unprepared or they shouldn't have, they had no business doing the argument in the first place.

So I think that this argument raised something really interesting for me, which is this advocate had given an interview earlier where he said, I'm doing this because every law firm was conflicted out of this case. They all represent Google at some point in some capacity. And so, yep, I'm a law professor. I've argued 22 times in front of the Supreme Court. Oh, only 22. Right? Like, my math has him at about 83 years old. And A, first of all, don't beat up on people on Twitter because you don't like their argument. I just didn't like the look. I think it makes you look small and petty.

You're not up there. Man in the arena, right? But two, this is so fascinating because I think some companies do this intentionally and some do it less intentionally but enjoy the side benefit, which is if you are a major American corporation with lots of money and lots of legal problems, and those two generally go hand in hand, you're going to be able to conflict out basically every major law firm and lawyer in the country. firm and lawyer in the country. And it leaves anyone who wants to sue you kind of scrambling to figure out who can represent them, so much so that they end up with a law professor. Now, mind you, again, one who specializes in this topic and has argued before the Supreme Court. So like, woe is me. You know, the guy only argued 22 times. But nevertheless, David, I mean, I've certainly seen this before and it's part of our legal system that isn't great, by the way, that all of a sudden, all the good lawyers, and I'm putting good in quotation marks here, you know, all the most

expensive, most experienced, most famous lawyers can't do the case against you. And I've certainly seen it in intentional cases where a specific company will basically make a list of, let's say, the six people that they don't want to have to go up against and just hire them all to join a conference call about the case. Oh, now you can't represent the other side. Yeah. Yeah. And that I wanted to put a press pause for a minute for the non-lawyer listeners. Conflicting out means if my firm has represented a company, I cannot take as a client a client that is suing the company my firm has represented. So that's the conflict of interest. And there's positional conflicts as well. There's a whole lot of lawyer conflicts. It's why a lot

of lawyers get annoyed working at big law firms. Because once you join a big law firm, they've already got their clients. They've already got their positions. There's not a whole lot of wiggle room a lot of the time to bring in new clients or new matters. But of course, that's how you're judged on your success. I mean, it's very, very frustrating a lot of the time. But that's a different part of it. That's the frustrating part of law practice. The frustrating part of needing to sue a big company is what I'm curious about. Yeah. So I practiced in a firm in Manhattan and then came back from there to practice at a big firm, big by Kentucky standards in Lexington, Kentucky. And we had this issue all the time where big employers would have a main counsel, like this law firm that was like their law firm, but they would not make that exclusive. They would hire for this smaller what, you know, I was part of discussions in my firm

where we were like, no, we're not going to take these smaller matters because we're going to be conflicted out of potentially much larger cases. And we all know what the pecking order is here. And we don't want to be a part, we don't want to be law firm number four. Right. And so this was an actual this was an actual consideration. And then there's another thing,, here's the key language of the statute. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. That is a pretty big statement.

So what are you left with? So what you're left with is you can't sit there and say that the YouTube videos themselves, that the actual videos are, that YouTube can be liable for the actual videos. He's left with sort of saying what you're liable for is the thumbnail recommendation on your screen or the video that begins to play immediately after the video you've played. And not the video, but the fact that that video is queued up next. Yes. The fact of that video is your speech, even though the video isn't your speech. Right.

Which is a very interstitial little argument. It's very tough. And then this is why you started to get to a lot of discussion in the YouTube case of the Twitter case, because the question then became, well, wait a minute, how is this going to be aiding and abetting, you know, terrorist activity? How do thumbnails, how does the next up you know and if twitter if twitter wins doesn't google win and why are you even talking about section 230 and he just had a really really hard case to make and that was just so much more apparent to me in the heat of of oral argument because at the very beginning when you talk about, and I remember we talked about this case, ooh, interesting, the algorithm is going to be on trial, so to speak.

And then you realize, well, wait a minute, what is this algorithm exactly? Well, it takes the videos that you watch and suggests more videos like the videos you watched. So it's not like a pro ISIS algorithm. It's a pro what you watch algorithm. And that became, you could see the wheels turning with the justices. And there was this really interesting question about, wait a minute, like, what if I walk into a bookstore and there's a sports section? Is the bookstore liable for the creation of the sports section? Wait a minute.

To a funny exchange, the chief justice asked that question and said, do you think that's an apt analogy? And the professor said, well, I'd like to know where it's going. I'm sure you would. And he's like, because it could be going some bad places. And I don't like everyone laughed. I'm like, that's what we're doing here. Yes, it was. He could see that he was walking into a trap, but he didn't know what the trap was.

And I was like, yeah, that's, you know what? Maybe more people should ask. Like, I'd like to know where this is going before I answer your hypothetical. You know what, David? I have a confession to make. Yes. After the argument yesterday, I got onto YouTube.

And I was curious how easy this was. And so I spent a lot of time trying to get ISIS recruitment videos. Oh my. Oh no. I did more than that though. I did more. Like there might be a knock at my door today. So I tried really hard to get some ISIS recruitment videos. I typed in all sorts of crazy stuff into the search bar and I'll tell you, couldn't get one. In fact, sort of the more I kept typing in, the more it seemed that it was only giving me credentialed news organizations, a lot of CNN, 60 Minutes, debunking, you know, all of the ISIS stuff. You know, I kept getting

this one video that felt particularly targeted to someone who was trying to find ISIS recruitment videos from a young woman, like a ISIS bride who said, I'd rather die than go back. That was the big headline. And it kept giving me that video. Okay. I also tried to find 2020 stolen election videos. Not too hard. That one, I think maybe I probably speak stolen election better than I speak ISIS recruitment. Also, don't forget on ISIS recruitment, it's probably a bit of a problem that I have to have all my videos in English. The stolen election video, though, I could get that pretty quick. And then, yeah, there were a whole bunch of videos that could suggest to me that

were also proving the 45,000 ballots were stolen in Michigan, stuff like that. But I was like, yeah, but like, that's I don't know, like that's not really the problem we're trying to deal with in these cases. So then I went back to trying to find really bad videos. So I was trying to find like jihadi videos, killing infidels. The Jews are bad. I cannot. The NSA is like lighting up like a Christmas tree right now over your. I live like 500 yards from the CIA. So it's not good. Anyway, that was also really hard to find. I'll tell you. So it's just worth noting. We're dealing with a real problem here, but it's probably worth saying that the real problem is relatively small.

Yeah. Well, and I hope you did all of that like in an incognito window rather than... Nope. Oh, no. See, I have worked hard to make sure that Google is right. I mean, YouTube is recommending me stuff I like. So I just went to the YouTube home screen and here are my thumbnails. Mac McClung, best dunks of his career. Secrets of US President $3.2 billion Air Force One. Ben Affleck's Duncan Super Bowl commercial, full commercial. HMS Anson, which is a new British nuclear submarine, sails for the first time.

First flight of the USS Titan, Star Trek Picard, and origins of Russia, summary on a map. I feel seen, Sarah. All of those things. I'm interested in all of those things. We'll next episode

talk about the Twitter case, which was being argued the next day. And that one is a little different, a little the same, right? As you said, David. So this is about, I'll just read the QPs. Whether a defendant, Twitter, that provides generic, widely available services to all its users and regularly works to detect and prevent terrorists from using those services, nevertheless, regularly works to detect and prevent terrorists from using those services. Nevertheless, knowingly provided substantial assistance under the Anti-Terrorism Act merely because it allegedly could have taken more meaningful or aggressive action to prevent such use. Second QP, question presented, whether a defendant whose generic widely available services were not used in connection

with the specific act of international terrorism that injured the plaintiff may be liable for aiding and abetting under the Anti-Terrorism Act. So not Section 230, right? And this is much more, you know, ISIS harms. But like you said, David, the two cases are interacting, and a lot of the questions in the Google case were almost, why did we grant both of these cases when the one seems to resolve the other? How does one resolve the other? Which one resolves which? So it'll definitely be interesting when we get to talk about the Twitter case in the next episode, because I think that will be a big focus. And we could see, I think, a dig here or a in light of our decision in Google, for instance. You know, we're sending this one back.

So more on that one to come, David. But shall we continue down our merry way? Yes, let's continue. So that wasn't the end of SCOTUS. There were a lot of cert denials that came down as well this week. of cert denials that came down as well this week. So first of all, Wikipedia had sued about NSA surveillance. Denied. Just denied. Womp womp. Not surprising. That one got a little gnaw-dogged under the state secrets doctrine. They wanted to sort of pierce that veil and be able to talk to people, look at documents. This is all kind of related to the Snowden leaks, by the way.

And every court, and now including the Supreme Court, was like, nah, dog, thanks. We're not reviewing state secrets doctrine over Snowden and over NSA surveillance. I'm sure there are people who are cranky about that. I'm not really one of them, to be honest. Number two, and David, this was like your pet case a little bit. This is the Arkansas anti-BDS Israel case. Right, right. Yeah, now this is a case where Arkansas had placed some responsibilities on state contractors,

for example, that they couldn't participate in an economic boycott of Israel. And essentially what had happened is the Eighth Circuit had said that, well, if we're talking about specifically commercial activity rather than preventing someone from speaking against Israel, but rather we're talking about specific commercial activity, then we are going to uphold the law, which is a very interesting thing, Sarah, because the question then becomes to what extent is economic activity expression? And there's a very interesting thing, Sarah, because the question then becomes to what extent is economic activity expression? And there's a lot of circumstances where economic activity is actually expression. But it's also let me let me loop back in to sort of try to explain why this is more complicated than it might seem on first glance, where the Eighth Circuit was basically, as the Eighth Circuit saying, well, this kind of anti-Israeli economic activity is going to be

particularly disfavored by the state, whereas other kinds of economic activity and boycotts are going to be fine. There's this interesting complicator in all of this with the BDS world, which is something that I've dealt with in the past, which is a lot of States, for example, prohibit national or origin discrimination, discrimination on the basis of national origin and their anti-discrimination

statutes. And by and large, when you're talking about commercial activity, By and large, when you're talking about commercial activity, those anti-discrimination statutes are upheld as valid exercises of state power in the same way that a prohibition on race discrimination blanket prohibition on national origin discrimination is as part of a nondiscrimination regime is going to be fine. Well, isn't sort of an Israeli boycott, isn't that going to violate national origin discrimination prohibitions in state statutes anyway? Well, in some circumstances, yes, absolutely. Now, you know, for example, there are some BDS, BDS means different things to different people. So there's some circumstances where BDS is a very blanket kind of boycott on Israeli

individuals, regardless of their point of view. In other words, they could be opposed to Israeli actions in the West Bank and Gaza and still be boycotted because they're Israeli, which is classic national origin discrimination versus saying we're not boycotting Israelis or boycotting Israelis who support maybe the current regime, which isn't a national origin boycott purely. It's complicated, Sarah. And my best guess is

that the Eighth Circuit narrowed the application of the statute sufficiently that the Supreme Court wasn't interested. I think that's exactly right. And, you know, we had talked about that case at some length. If the decision of the Eighth Circuit had been reversed, I think the Supreme Court would have taken it. But I think the narrowness of the Eighth Circuit upholding it allowed the Supreme Court to just be like, we've got other fish to fry next term. Right. And the last big case for assert denial, drumroll please, it's the Onion amicus briefcase. This is the guy who posts on Facebook the satirical stuff about the police department. You know, if you want to get molested, like join me in this van, says the police department and a Facebook page. They arrest him. He is suing under 1983

for a violation of his civil rights. And that was shut down under qualified immunity. And so you had the onion brief that we talked about at length. We talked about the case. And David, I'm pretty pleased because I think we were pretty clear that we thought this would get denied cert. Yeah. And it did. Now, for the litigation funders out there who are trying to make bets on these cases, unfortunately, my superpower seemed to only apply to the civil rights domain where litigation funding isn't nearly as profitable. we said at the time that thought it would get denied because if you want to revisit qualified

immunity, which the court has not wanted to do, they've been denying all the qualified immunity cases. Um, I do think they'll take one, but they're going to take a really clean hit and they have got options. They've got endless options to take a qualified immunity one where they can take a clean hit at clearly established, go back to the historical case and the actual language of 1983. This wasn't going to be it. And so, you know, the only part that I thought was. Notable about this is that it was not the split second decision. I also don't think they're going to take a qualified immunity case that is police officers, you know, walking up to a car at night and they're not sure. And is it this? Is it this? And something bad happens. It's going to be a

school administrator or something of that nature. I think it will be in that First Amendment context, probably, maybe if school on their Fourth Amendment, maybe. And this wasn't that case in part because you had an arrest warrant. You had a prosecutor. You had a magistrate. You had all sorts of other people in the chain of events. And I thought, eh, too messy to get the clean shot at qualified immunity. By the way, this doesn't in any way mean that they're saying it's okay to arrest people who make satirical Facebook posts. It's just that you don't get to recover. And it'll be interesting what happens with that Fifth Circuit case, which I think is a bit of a better vehicle for SCOTUS review. Similar, right? A Facebook journalist gets arrested for asking questions. Not necessarily a better vehicle for reviewing qualified immunity. It's actually pretty similar when it comes to that. But it is a more egregious version of that Ohio case.

Yeah. You know, from the moment we talked about the onion case, two things were pretty clear at once. One, it was really outrageous. And two, however,

because so many layers of government all sort of failed together under classic qualified immunity doctrine, this wasn't close. It wasn't, you would have to be really upending qualified immunity doctrine, this wasn't close. You would have to be really upending qualified immunity doctrine, which I want to see. And I'm all in on, but I'm also very realistic about the prospects of that in the near term. And I think you're completely right. They're going to wait on the cleanest of clean hits. Yeah. The interesting thing about that Texas case, and remember, this is the one that's going, that went en banc.

They just had the argument. We don't have the opinions yet. Is that in the Texas case, you still have the prosecutor and the magistrate and all of those things. Actually, I'm not sure you have the prosecutor. You have the police going to the magistrate to get a warrant.

And now what makes it a little more interesting is the conspiracies, maybe too strong a word, but the idea that what if everyone wants to go get this person and violate her rights because she's a thorn in their side? That's not really what was happening in the Ohio case. And it seems like it was sort of, if you will, a good faith blatant violation of the first. And you have the law in Texas, which is bonkers, which says that you can arrest people for getting non-public government information, which is insane to me. So a lot of different things about the Texas case make it more interesting, more egregious in my view, but still not great vehicles for qualified immunity. Right. So we'll see where that one goes. We're waiting for that en banc decision, which could be a while. All right, David, next up, let's talk a little bit about some DEI training. Yes. Yes.

So my old colleagues and my friends at FIRE have done the world a service by putting out model DEI statutory language. Now, what do I mean when I say model DEI statutory language? A longtime listeners of Advisory Opinions will know that Sarah and I have talked a lot about this trend coming from mainly from red state legislatures where they're attempting to ban CRT. And we have talked about some of the weaknesses of those bills where some of them are better or worse than others, but they're all centered around this sort of idea that here are a certain set of concepts that we are going to ban to a greater or lesser degree, whether they're included as part of instruction, which is a broader ban, or whether the ban is we're banning you from trying to

inculcate these concepts or advocate for these concepts. But what they're essentially saying is here's a set of ideas that we want removed from schools, removed from corporate diversity training, removed from higher education, etc. And that's got a lot of First Amendment problems. And to oppose those laws or to say that they have First Amendment problems is not to then say everything is just great in the DEI world. Because there is a tendency, and we've seen this in a number of universities, to impose sort of a DEI litmus test.

In other words, let's say you're applying to become a professor of actuarial sciences, if that's like a thing, or you're applying to become a professor of physics. And then you're going to have to put forward a DEI statement. Here I'm describing my commitment to diversity, equity, and inclusion. And what ends up happening is you create a de facto ideological litmus test for employees. And so what FIRE did is create a DEI, a model DEI statute that on the one hand protects the academic freedom of institutions to teach DEI concepts, but it prohibits institutions from applying DEI ideological litmus test, using it as a gatekeeper to prevent people from working at and protect people from ideological loyalty tests, compelled speech, etc. And it really does strike the right balance, Sarah, in my view, between permitting speech and protecting speech we may not like, which is cornerstone First Amendment value,

protecting speech we may not like, which is cornerstone First Amendment value, with also prohibiting the ideological litmus tests that result in ideological cocooning, outright discrimination on the basis of viewpoint that's also unconstitutional. Look, you know, I'm biased in favor of FIRE, but I thought it was well done. Yes, although it doesn't get to a different problem with DEI trainings, which is that there's increasing amounts of data that the DEI trainings fall somewhere between don't work and have the opposite effect. Yes. And so even short of a litmus test in admissions, hiring, promotion, the trainings themselves aren't doing what you want. They're

making you feel good because you paid for a DEI training and you made people sit through it and like pat on the back, you solved racism, but you didn't. Like that's not how we measure success. I hardly always used to say this and it was so annoying, but true. Activity is not the same thing as accomplishment. And these DEI trainings are mistaken for accomplishment when they are in fact activity. And there's nothing FIRE can do about that. Right. So there's that and there's another aspect. One is you're exactly right. And this is something that is about as well established in the social science literature as you'll find, that there's just been a ton of studies on the effect

of diversity training. And what they find is mandatory diversity training is really ineffective at best and counterproductive at worst. The diversity trainings that are effective tend to be voluntary, where people who self-screen to be interested in it go. Which are probably not the people who need it. And I'm thinking right now of Don Lemon at CNN, who just went through a sexism training so that he could go back on air after six months ago, saying on air that perhaps one of his colleagues who lost her train of thought had, quote, mommy brain. And then this week saying that women are in their primes and their 20s and 30s. Yeah. And I'm sure that training has solved everything. No more sexism. Done. The other thing real quick, because we've got some fun guests to get to. The other thing real

quick is there are some forms of DEI training that can actually violate civil rights laws. is there are some forms of DEI training that can actually violate civil rights laws. So if you have a DEI training where you're mandatorily sorting people by race, if you're ascribing negative characteristics to people by race, you need to be really, employers who are trying to be somewhat edgy or radical,

you might want to rethink that because racial sorting, mandatory racial sorting is going to be looked at really askance by courts. The name itself should give it away, by the way. Racial sorting doesn't sound good. Stanford, of course, is being sued for this, for forcing their Jewish professors into the white group and then signing on to all of these, as a white person, I have committed X, Y, and Z sins. Yeah. Racial sorting. If it doesn't sound good, it's because it's not. All right. Well, shall we move on to our guests, Sarah? the Donald Bren Distinguished Professor of Environmental Law with joint appointments at UCLA School of Law and UCSB Bren School of the Environment. And for those at home, that's Santa Barbara and I can see the surfboard and the ocean.

This is awful where I am sitting. There is no surfboard or ocean. Location, location, location. And that's going to be so relevant because they're here today to talk about their book, Mine! How the Hidden Rules of Ownership Control Our Lives. This book caught my eye for a few reasons. One, property was my favorite class in law school. Also, great quips on the dust jacket cover. There's a picture of a slice of cherry pie with a fork in it. And you've got Jared Diamond saying, this delicious book will guide you through the confusing maze of ownership disputes that bedevil our daily lives. This is a property law book for not property lawyers, but property law is so much fun.

So that's what we're going to do today. And David, I'm going to throw it to you first because you have the most important property law question that every non-lawyer and lawyer needs to know. This is a question that's the headline of the New York Times review of the book. And it's so compelling because actually this is the kind of thing that everybody has thought of at least maybe once in their life. And here's the question, who owns the space behind your airplane seat? That's rich and layered because it has both, guess legal and moral considerations it's got everything david but first i want to ask you and sarah what's your intuition it may not be

it may have the intuition and maybe what's your deep-seated conviction my deep-seated conviction is i own a mobile segment of square of cubic footage. And so the symbol that I own that mobile segment is that when the seat in front of me reclines, I have a right to recline as well and maintain the degree of separation. That's an actually insane take that makes no sense in law or fact. Here is the correct answer. I am totally sure. By virtue of the airplane

putting in a recline feature in my chair, I own the amount of space in which the chair that I have purchased reclines. The end. That's how it is. Perfect. So we've given dozens, scores of talks on our book around the country.

And we did this during COVID. And so probably the only advantage of doing a Zoom book talk is that it's a polling feature. And we would poll every audience. And virtually every audience was exactly split 50-50. This is a perfect thing. And people just look at each other in amazement saying, how can you possibly think something so stupid and clearly wrong? So what's going on?

What's going on? And really, one of the main messages of our book is that there is no preordained fixed ownership. Ownership is always up for grabs. And the way that we decide who gets what is storytelling, right? So Sarah is telling a story called attachment. It's mine because it's attached to something I own. She owns the back of her seat. And therefore, if she can recline into space behind it, that's hers as well. David, you've got kind of a hybrid. I mean, the basic approach would be either current possession or first possession. It's mine because I'm holding on to it. It's mine because I had it first. Both of those work. And essentially, we call Sarah the right to You regard that as trespass, right? That's yours,

and she's leaned into it. And so you've got these two stories that are, frankly, equally valid. And what's fascinating about this is the airline knows this. And in fact, they've engineered this problem. So there's a term called pitch, which is the distance between seats. And you and your listeners will know that pitch has been reducing over the years. So basically, one inch of reduced pitch leads to six extra seats on a flight. So it's real money. And so we've been getting closer together. At the same time, the space behind your seat has become more valuable because instead of just using it to eat rubber chicken, now you use it for a laptop, right? It's a space, your home entertainment center.

It's a space you use. And so you've got this valuable resource and there's less of it. It's scarcer and we need it more, right? So there's much more. You know, when I was growing up, people didn't fight over whether you could recline your seat or not. You look into the newspaper and you get stories almost every week about some fight that's breaking out. Airlines know this, right?

And so when you and Sarah are getting into this tussle, do you ring the bell and ask the steward or stewardess to come over and sort it out? No, right? The idea is you're going to work it out yourself. It turns out there actually is a rule. You are allowed to recline. Airlines will never tell you. And the reason is they're relying on you to work it out. And it's brilliant because your flight is less comfortable. They've now created a whole new asset class called Economy

Plus, where you don't have to worry as much about this. They've created the problem, but we don't blame the airline. We blame each other. But there's even more going on. Michael, you want to take over? Well, so what Jim suggested is that the airlines design ownership for their benefit. What they have to sell is that space. And they are masters of what Jim and I call ownership engineering. And this is a great example of it. So one of the real tools of ownership engineering for airlines is strategic ambiguity. They deliberately leave it ambiguous so that you don't know. Are you being rude? Is the person in

front of you being rude? They basically make us work out in millions of these micro-negotiations who gets to lean back when. And it ends up being different based on gender, based on race. There's all kinds of complexities in who leans back. But at all points, the airlines are selling that space twice. They could just fix the seat at a certain place, but then they don't get the benefit of reclining or not reclining. And they know this. So it's extremely valuable to them to maintain ownership ambiguity, strategic ambiguity. And the way that they do that, as Jim said, is by using some of the simple stories that we have for every resource in the world. So attachment, the button, is one of, it turns out, just six simple stories that everyone uses to claim everything in the world. David is using

first in time, another of the six stories, and possession is nine-tenths of the law, a third. So you have an attachment story against a first in time story, and everyone feels in the right. And all that time, the airlines are making bank on it. I do feel so right because my chair reclines. Therefore, I don't like this doesn't I it's one of those few things where I actually do not understand the arguments from the other side. I work so hard. Yeah, there is actually, it turns out in our polling of audiences, there is actually a gender component. And it may be that women are more tired on airlines. They want to rest. They've been working hard. I don't know. But guys, maybe men are taller and their

knees are sort of more squished on average by the seat reclining back into them. But you get very strong views that are absolutely in conflict that sometimes lead to actual fistfights, planes being grounded over this. And in the face of that, airlines still won't tell you what the rule is because it is so profitable for them to maintain that ambiguity. But realize as well, when you talk about sort of scarce resources, an airline is perfect for this, right? So think about when they announced, you know, group three, line up. You are making eye contact with everyone around you because you're establishing your ownership in the line. Who's going to get on first?

And it's never a line, right? It's a scrum. But you're eyeing each other, trying to figure out who's going to get there. You get onto the plane and the overhead luggage compartment. Who's going to get access to that? See, that's first in time to me. That makes sense. Okay.

Unless someone puts in a jacket, does that count? Should a jacket have access to that space? Oh, that's, no, that's encroachment. If you put in your jacket, which I never do because I'm a nice person, I don't move the jacket. I am annoyed and I think you're morally bad, but you did it. Well, he's about to get worse because you're sitting next to each other and you have a shared armrest. Oh, the armrest thing. So this actually is very gendery for me. I feel like this is the fight over feminism in a two-inch space.

It is. Go on. Because Especially on Southwest Airlines, for instance, there's a constant stream of large men who really, really want small women to sit to choose the seat next to them. Right. Fine. I understand why you want that. I'll even sometimes do that. But in exchange, my God, that is my armrest. And like to me, like men taking the armrest next to a smaller woman because they think they're like bigger or that they need the space like, oh, I will keep my arm there out of spite the whole flight. I have a similar view, but it's more compensatory for the pain of the middle. I agree with that.

There is a middle seat exception. If you're in the middle seat, I do with that. There is a middle seat exception. If you're in the middle seat, I do tend to give you the armrest. Yeah, because if you're on the aisle, you can huddle away. If you're on the window, you can lean against the window. Let the poor middle seat person have the armrest.

So Sarah, what's so cool here is like, it turns out that you guys both have slightly different, but extremely elaborate understandings about ownership on an airplane. And we all do, right? And that's, it's a pretty trivial example. And I mean, it's important when you're flying, but in the scheme of things, it's a pretty trivial example. But this example about attachment versus first in time, how we fight about ownership in that very confined space, is the same fight that we have over who gets to drill for oil underground, who can fly a drone overhead,

how nations take space vis-a-vis each other. It's whether Facebook can track your data online. All of those examples about drones and Facebook and oil, they're all the same exact conflict between attachment on the one hand and first in time or possession on the other. So that's a very trivial example, meaningful in the moment. What we do online, what we do in the air is actually the same story that we face all throughout our lives about the big picture of ownership, not just the very specific one. Another thing to highlight here is how deeply you feel this, right? Ownership attachment, it is hardwired.

I mean, it turns out that one of the very first words that kids learn in any culture is mind. It's fundamental to who we are, right? Any organism has got to control resources. And we know from Finding Nemo that is the exclusive language of the seagull. It is. And, you know, actually, those seagulls just go, my, my, my, my, my, my, my.

And it's a complete vocabulary. It's all they really need to say. Sounds like a two-year-old. So I love property law. And there are two specific property law things that I have taken with me in my everyday life. One is the bundle of sticks. And I was hoping as law professors, you could illuminate the bundle of sticks for the audience because there are very few places in life the bundle of sticks can't inform you in some way. You know, when it comes to a conversation,. There's a bundle of sticks that comes with that conversation

and your rights and responsibilities all wrapped up into one. So hoping that we could get some bundle of sticks explanation. The other one, which I don't think is taught in every property law class. So shout out to my wonderful property law professor. But that was the burden equals probability times loss, BPL. And I got really into that, which also I think can inform many parts of your life. But bundle of sticks is the quintessential property law. You basically spend all semester learning the bundle of sticks. So some of your audience are lawyers and some are not. So let's back up one step. So the bundle of sticks is not like a big stick that you hit someone with. And that is law. I mean, you might think that that's law. And in many cases that is true. So, you know, might plus history often is law, right?

You know, who owns the American West? But when you say the bundle of sticks, you're actually talking about a very fundamental idea about what it means to own something, which is that we have relationships with each other. So Sarah, I might own that space in front of you for some purposes, but I can't, for example, gratuitously whack you with the chair when I know that you're there. So for some purposes, I own the space. For others, I don't. And the bundle of six is getting at that notion that what property means, what ownership means in our culture is never absolute. It's not that you own something. It's that your relationship to that thing differs depending on whether it's David that you're interacting with or me that you're interacting with. So the bundle of sticks is all the different rights and all the different responsibilities

and all the different duties that we have towards each other around this incredibly valuable stuff. So that bundle of rights is pretty amorphous when there's plenty of space between seats. No one really cares. But then as we get closer together, those rights become more sharply contested, more disaggregated, more we care about this one and not that one. You care about the armrest and not about the space under your feet or about the space above your head.

So that disaggregation, breaking apart this sort of general notion of it's mine into its components, into specific relationships with each other, where we're telling specific stories. It's mine because it came from my body. So just to expand on that. So your spleen, your kidney is yours. You own it. But it turns out you can't sell it.

You don't have the stick to sell that. You might have the stick for my surfboard. I can sell my surfboard. I have the stick to sell my surfboard. I don't have the stick to sell that you you might have the stick if you for your for the for my surfboard i can sell my surfboard i have the stick to sell my surfboard i don't know the stick to sell uh my spleen and so the bundle of sticks basically talks about what what are the different ways you control a resource you might have the right to sell you might have the right to gift you can give away your kidney and people do all the time. You can give away a baby, you can't sell a baby. So you can devise certain things, you can leave certain things to your heirs, but not others. So the bundle of rights is all the stuff that together might make up ownership, and then each stick is some specific relationship, some specific

story as to some specific resource that we then fight about, like, like leaning back in that airplane. So I'm, I'm curious, you guys there, you, you talked about the drone. Um, have you, during your, and I've also had the misfortune of doing the zoom book tour with releasing a pandemic era book, which I have discovered. And I don't know if this is your experience. You talk to a lot more people without the social pressure to buy a book. Right. So when you do a live book event, there might be fewer people there, but everyone there better have a book in their hand and even better two or three, you know, for family and friends. A zoom people can just drop in and hear a little bit about the book and drop out.

And there's none of that social pressure to buy. So to all you aspiring art authors out there, don't fall for the notion that a Zoom book tour is better because you got more people. No. Anyway, the drone question is really interesting to me. Did you, when you were doing that Zoom book tour, did you ask people what their thoughts were on your, on whether or not you should have the ability to shoot a drone right out of the sky with, you know, relatively harmless, maybe, you know, like birdshot ammunition or something. But where was the consensus?

So on drones, most people who are not deviant do not think it's okay to shoot a drone down, even if it comes over your, for example, suburban backyard or near your apartment window. There are the occasional case where someone has shot a drone down and they get arrested for criminal endangerment. In one county in Bullitt County, Kentucky, the judge said, no, it's OK to shoot a drone down over your suburban backyard.

That's sort of an exception in the American terrain to be able to shoot down something over. This seems this seems nuts. So the famous case on this is the chicken case, right, where the like airplanes or whatever are flying over and they're scaring the chickens and the chicken farmer sues. But the drones aren't flying at 30,000 feet. We're talking about like your kid's neighbor drone that's like 10 feet off the ground and buzzing and looking at your, you know, you naked out of the bathtub. Hell yes, I can shoot that drone down. Sarah, what are you doing armed in the bathtub? Always prepared. That's cutting right to the really important question. No, you can't. You can't. I mean, you have, you know, this is all one of the new technologies.

And it's the same with when you squeeze people on the pitch on the airplane, conflicts emerge because resources become scarce. That's true for ownership in general. Ownership conflicts only emerge in the face of scarcity. When there's abundance, no one really cares about what's owned. And that's the same as true for drones. Until fairly recently, there was nobody who was operating at the sort of 50 to 300 foot level above your house. A hundred years ago, when airplanes first flew overhead, people would say, well, that was my space that you're trespassing over when the plane flies a thousand feet above. And the reason you couldn't shoot it down was that you didn't have the right surface-to-air missile. That would be Sarah's position, right? Sarah would say, the only reason I can't shoot that plane down is I don't own the right kind of technology to shoot down planes flying overhead.

But that's not right. What attaches to your land isn't up to heaven and down to hell, which is the old Roman law notion of ownership, this column or pillar. I mean, you're just saying that as if it's true. I mean, it's not taken for granted. You buy the land. You certainly own some vertical space. And then what we've been discussing is how much vertical space. Yeah, and that's what we fight about. And there's certainly a reasonable argument that you own the cone to heaven, man. Yeah, and that's not true. That's never been true. There wasn't any easy access to heaven, at least as far as we know, way back when. So we don't know if you actually owned all the way up

there. That way your house in heaven was right above your house on earth. We don't know that. And when planes started flying overhead, the government said, reasonably, you can't do that, or else there wouldn't be an airline industry. So they basically said, you know, above a thousand feet is the heavens. You don't own that. But Sarah's on to something, because this is contested. She's telling her story. You're telling your story. And ultimately, it's either the judge or the legislature that's going to choose one story or the other. What's interesting is that Sarah is like completely inconsistent here. Like on the airplane seat, she's all about attachment. And here she's like, you know, the things sort of leaning into her space from outside,

like leaning in the seat. She's like, absolutely not. That's not OK. Like the drone sort of is like the seat leaning into your space. And she's like, ah, that's it. It's my bundle of sticks. The airplane seat, one of the sticks in the bundle is this reclining feature. Maybe.

And that came with my lease of the seat. that by virtue of belonging to a nation state, that the government actually has an easement at a thousand feet, whatever you want to call it, and above that, and that they have then, that easement exists in my cone of heaven, and that they can use that and give that even to airlines. And I can't do anything about that. But then when you're flying the drone, you, creepy neighbor kid, have no easement into my airspace to look into my window. Unless we say so. I mean, that's the point of our book, which is that you may be right, or the creepy kids may be not right in some technical sense, but think about Domino's Pizza or Amazon that maybe wants to deliver stuff to your door. And the cheapest, fastest way to

deliver things going forward is by having drones fly over a bunch of people's backyards. And then at that point, it's just an ownership storytelling battle, like all resource battles are. There are just six simple stories. You're going to tell one. Amazon is going to tell another one. And those stories are in conflict. And it's not that there's a correct answer or a natural answer. You have a strong intuition that there's an answer. And that's what we sort of beat out of the heads of our law students in law school, is the intuition that there's just a correct, natural, given answer, which tracks whatever

your intuition is. The intuition is you can lean back on the airplane seat. The intuition is no one can lean their drone into your space. Those are all perfectly reasonable, but those are just stories that you're telling that you have to persuade others to adopt. Two things here. One is I'm getting the most extreme flashbacks to arguably the longest and most intense dorm room discussion of my law school career, which was with a minarchist libertarian who was trying to convince me that the Second Amendment did not prevent him or the Second Amendment allowed him to own a surface to air missile system and that that therefore he also owned the sky above

his his land. And if he could make sure that he could shoot down anyone who intruded without the debris landing on other people's properties, then that should be totally fine. And I think we argued about that until about 4 a.m. one day, which then leads to number two. It seems to me that when you have this many competing stories, then all of a sudden you're putting an awful lot of premium on process to decide which

story prevails. And that ultimately is the process of resolving the disputes between the stories in some ways more important than the stories themselves. That's the secret lesson really that law students learn in law school, which is that if you can choose to have the substance of the law on your side or the procedure, you want the procedure. That who decides and how the decision gets made turns out to be almost always more important than the actual decision. The decision-making process often controls the outcome. And that's very true for ownership conflicts.

So, for example, we saw that on the airplane seat, the ownership dispute process is carefully engineered by airlines to have you fighting with the person in front of you and behind you. And in Facebook, when they collect your data, it's the same ownership battle, but there the battle happens at the European Union level or at the national level or at the state level. And it turns out that you have different levels of ownership of your data if you're in California, where Jim is right now, from where I am in New York. I own less of my data. Facebook owns more here than there. And it is just a matter of these battles and then who decides where those decisions get made and which of those six simple stories ends up being persuasive to the decision maker. Property law, I would think, is our oldest law, much older than criminal law, for instance,

I would think, is our oldest law, much older than criminal law, for instance, because we didn't have the resources to have a police force or things of that nature. And going back to, you know, sort of tribal times, for instance, if you killed someone, you might owe money, but you weren't going to be, the law itself was not going to be able to punish you in the way we think of, you know, prison or something like that. Those types of things didn't exist. But property law, that has to be sort of the oldest thing we have, which I find very cool because you can go back as far as you want to, you know, whether it's cone of heaven or bundle of sticks, fee simple. We have all these terms in property law that are super fun. And the cases that you read are some of the oldest. Other than that case that you start

with about eating the poor kid on the boat, that one was a real bummer in crim law. That one stuck with me. But other than eating kids, property law, that's where it's at, the history. Well, let me go back even farther. Let's start at the Garden of Eden. where it's at, the history. Well, let me go back even farther. Let's start at the Garden of Eden, right? So God says to Adam and Eve, treat this place like it's your own. Enjoy. You see that tree over there? You see that fruit? Don't touch it. It's mine. And they take it. And then what happens to them? They're basically evicted from the Garden of Eden, right? Archangel Michael stands there with a flaming sword, right? Don't come back. Ancient Greek mythology, right?

What is the action that basically starts humanity in ancient Greek mythology? It's Prometheus stealing fire from the gods and basically giving it to the humans. The fact is, as we said earlier, ownership, who gets what and why? It's the foundation of civilization. And property law, we write in the book, is a scaffolding. Ultimately, property rules, ownership rules, make sure we don't kill each other too often in order to get the stuff we want. One of the points that we also try to get across to our students, and we write about

a lot in the book, is that most of property law happens outside of anything that you would recognize as law. Like 99%, 99.99% of the resource conflicts we go through all day, every day, they're ownership conflicts, but they're not really legal conflicts. They're the intuitions that Sarah and David bring to what happens to that two inches of space on the airplane seat. It's how you line up in the Starbucks to get your coffee. It's all those tiny interactions you have all day long are ownership battles that are happening. And often if you don't realize the battle is happening, somebody else is defining the terms for it in some way to their advantage and not really to yours. Quite invisibly and quite outside of anything that ever looks like law that a law student would learn or a lawyer would practice.

Well, I think that is the perfect place to stop. The book is called Mine! How the Hidden Rules of Ownership Control Our Lives by Michael Heller and James Saltzman. Thank you both for joining us. And I'm sure your students have a blast in your courses. Cone of Heaven, Reclining Seats, Drones. We didn't even get to some of the other really fun topics on climate change. One last question. The window.

Is it owned only by the person on the window seat? Or do the middle seat and the aisle seat have any claim at all? If you reach over me to touch my window, you will be getting an elbow in there.

That is the newest, that is the frontier of ownership conflicts in the airplane space, right? Because now that shade is open, you cannot see your screen. You're like stuck with all that glare. So it is absolutely a resource that is shared among the three of you, or two or four, however many are on that side. And the rules to it are as unclear

and contested as the armrest and the recline button. So the airline isn't going to solve this for you, but there's been work airline isn't going to solve this for you, but there's been work done on how you can solve this for yourselves, right? So say you don't want someone leaning back into your space. And say that's Sarah that you're trying to have not lean back into you.

And it's David trying to have this happen. So David, what you can do, if you ask her not to lean back, she absolutely thinks she is able to. And that will not work with Sarah. Like asking her not to lean back will not work. Offering to pay her 20 bucks not to lean back, turns out, she's nodding yes, but studies have shown that most people won't, they feel offended having it monetized in that way. But you offer to buy Sarah a drink or a snack,

you sort of create some community, about three quarters of the time, the Sarahs of the world will agree not to lean back if you create this community between you. So that's news you can use for your listeners. See, if we had ended the podcast two minutes ago, we would not have had that incredible insight. That was fantastic. That is true. Look, I would take the 20 bucks also to be clear. But what's even weirder about that is that if you offered to buy me a drink, I often don't want to drink on airplanes because I'm doing work or whatever. I would turn you down on the drink and still not recline my seat because of the offer. That's what's even weirder. Yeah.

The offer really makes a difference, right? It creates a community and the community really matters. And look on the window, I always sit in the window seat. So the window is mine to do with as I please. However, there's one big exception, which is when you're coming into DC and I will check on the flight path. I'll, I'll peek up the window to see if we're coming down the flight path that goes down the Potomac. And so the view is just outrageously wonderful. I will always put up the window for everyone, especially if I can see any kids or young people who might not have seen that view before.

That is my duty. You have a generous spirit. Yes, but it is mine. Let's be clear. It is out of my largesse that you are allowed to look out the window. You should charge them for it. Here's for three you are allowed to look out the window. You should charge him for it. Here's for three bucks.

You can look out the window. Thank you guys so much for joining us. What a fun, fun, interesting, and useful book. Whether you're camping outside the Supreme Court, right? Those places in line, you have to form your own government and who's there and what the rules are. That is a form of property law that you are creating on your own. As our poor staffer found out last night, number 47, they only let in 43 people and there were line sitters. And we all know how I feel

about line sitters. So they did not form a good government, I would argue. David, that was super fun. We're going to skip the Florida the Florida bill we're gonna do that next time instead look I thought the gender part of that was so fascinating um I want to spend a lot more time thinking about why uh as a woman I feel so put upon in an airplane that everything is a fight for feminism and for all womankind. I thought that was a great conversation and really interesting to me that all of the competing different stories, which as we said at the very end, means that at the end of the day, if we're going to function together with all of these competing stories, we have to have at least some level of agreement on process. How do we resolve it?

Yeah. And then the airplane free-for-all, that gets so interesting. And it's gender and race. And you end up with this might is right thing and what people are more afraid of, more interested in. A lot of Karens on planes. No question about that. Yeah. I mean, this is a book to read on a plane and then like point it out to your neighbor as you're reading. All right. So next episode, we have

tons and tons of things. We're going to combine the Twitter and Google cases. Finally, two different days of argument. We're going to talk about that Florida defamation bill. And David, I wanted to have a little debate with you on the First Amendment and whether you can ban minors from accessing social media and so much more next on Advisory Opinions. Oh, oh, oh. Oh, oh, oh.