Jurisprudence

The Fierce Legal Battle at the Heart of the Fight Over Reclining Airline Seats

 An airplane comes in to land at sunset.
Chris Jackson/Getty Images

On a recent episode of Amicus, Dahlia Lithwick spoke with law professor Michael Heller about Mine!: How the Hidden Rules of Ownership Control Our Lives, which he co-wrote with James Salzman. Mine! seeks to do for ownership what Freakonomics did for incentives and what Nudge did for our cognitive biases. It opens up a new, counterintuitive, and fascinating way to think about the world that we all take for granted. Their conversation has been edited and condensed for clarity.

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Dahlia Lithwick: You both open and close the book with toddler rules, which I love. Mine is actually the very first word that many toddlers say. And we feel like we have an intuitive cognitive cultural understanding of what mine means, but the whole point of the book is that almost all of that is wrong. Is there some overarching theme of how toddlers think about the world and why they’re wrong that you could distill for us?

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Michael Heller: Toddlers actually get it pretty right. So, when you see two kids fighting in a playground and one kid’s shouting, “Mine!,” and 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. But what they’re actually doing is 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.

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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.

There’s such a throughline in this book around air travel. 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.

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Well, 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?

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And my co-author, Jim, and I realized that that little interaction that we have all had so many times when we fly 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 traces back to these very same simple few stories, and all those stories are on display in that crowded, mushed, conflict-ridden space, which is the airplane seat.

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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. 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 pilot did an emergency landing right away. They were taken off the flight. The plane went on to Denver an hour and 38 minutes late.

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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 the little button reclines the seat.” And the guy behind, like the kids in 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.

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When I talk to audiences about that conflict, I always poll them, and it’s amazing to me that invariably half 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. And on 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.

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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 there’s no dispositive resolution for them either, so it’s really on their necks to try to litigate this when you have, as you say, 50 percent of the folks thinking there’s one property rule in play and 50 percent saying the other property rule is in play.

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I want to ask just one doctrinal question, which is, how do you think about ownership in relation to the things we learned in law school, whether it’s property law or intellectual property? Is ownership a different word for property, or is it broader in some way?

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Well, ownership is property, property is ownership, and both property and ownership, in my mind, and from years of teaching and working with students, is massively overrated. So one of the 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 a 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.

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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.

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. The one that you start with is first come, first served, the notion that it’s my shovel because I picked it up first, if I’m in the sandbox. I imagine my teenage boys yelling shotgun when they want to get the front seat in the car.

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And you start with one of my favorite examples, which is the paid line standers at the U.S. 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.

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First come, first served is one of the six basic maxims everyone uses to claim everything. Part of why it’s so basic is 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 served. You pretty much know how the line works. You’re Person 83 in the line, and you’ll get in 83rd. But 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 standers, 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.

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So, a simple lining up, like at a deli—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 today, it turns out much more often than not to be first come, last served.

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I experienced this most dramatically going to Disney World with my teenage kids. They’re pretty patient, but the lines can be 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 standers at the court, but Disney said, “Hey, if there’s going to be money to be made, we, Disney, want to make it.” So they figured out a FastPass 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 superduper FastPass called a VIP guide, where if you pay $3,000 to $5,000, you skip every line on every ride all day long. So the only people who are still playing by first come, first served 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.

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Now, Supreme Court’s line standing, Disney, 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. The early courts in this country said, “Who does the land belong to?” When there were conflicts between people who claimed it from white settlers and people who claimed it from Native Americans, the courts decided, “Well, the way we decide this is who was first.” And their answer was white settlers, not the Native Americans. How can that be?

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Who was first at the Supreme Court standing in line, at Disney, and for who owns every piece of land in America is not an empirical fact. That’s one of the hardest things to get across to my students: First-in-time is an ownership story, like possession is nine-tenths of the 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.

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For me, the throughline for so much of this is, you and I, regular people, are having increasingly heated disputes about which of us own 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 deeply held, deeply felt visceral senses that we have some ownership interest, where in fact it’s just they’re profiting,

Right, and that’s true not just in the settling of America, but 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 to allow the airlines to keep shrinking the pitch, and as they do, that wedge of space becomes a more valuable resource.

To hear their entire discussion, listen below, or subscribe to the show on Apple PodcastsOvercastSpotifyStitcherGoogle Play, or wherever you get your podcasts.

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