The Read: Michael Heller and James Salzman, Mine! How the Hidden Rules of Ownership Transform Our Lives
Friday's Child Is Loving and Giving
Why did I get this book?
Dahlia Lithwick brought it to my attention through an interesting interview with the authors.
Is it what I thought it was?
Actually, it’s better than I expected. I was getting some this-year’s-Freakonomics vibes from its promotion so far, which to me often signals a disappointing or annoying book. There are two genres of contemporary nonfiction writing that always leave me feeling sour and dissatisfied: one is vapid business writing intended to stroke the easily wounded egos of our current executive class by assuring them that they are in fact geniuses or that the world in fact works precisely as they believe it works, the other is attempts to reproduce the Freakonomics formula by demonstrating some simplistic “it makes no sense, but in fact, human evolution has in fact been driven by religious leaders who have been infected by toxoplasmosis while children and who have then ingested too many arsenic compounds via their excessive appreciation of art” sort of thesis that is nakedly an (all-too-successful often) attempt to get credulous NPR book show hosts to gush about how amazing it is that Pope Clement the Whatever’s cat shitting in the Vatican plus the Italian Renaissance’s artworks completely explains the entire course of modernity.
This is not one of those books. It’s more basic, more thoughtful and more satisfying. Though I also think it has a touch of the blithe presentism and Americacentrism of work in this genre, and as much popular nonfiction does, takes capitalism as universal.
What continuing uses might I have for it?
Honestly, I’d love to have a discussion of it with colleagues. It makes me realize yet again that we’re a bit short hereabouts on people who have done some degree of legal study. On the other hand, I can see where there could be some legitimate complaint of a familiar kind (that I share) from historians, anthropologists, humanists, etc. of the assumption of universality that’s unearned by the cases cited and reviewed, particularly of forms of usufruct or common ownership. It also, surprise, normalizes the way that economics and law (broadly speaking) imagine ownership. More in a bit.
Quotes
“Duke is not alone in reengineering first-in-time to serve its purposes. All kinds of owners of valuable resources are realizing they can create even more value (for themselves) if they don’t simply reward those who patiently wait in line. And everyone bows before Disney, the true master of pushing people around and getting thanked for it.”
“The open floor plan and managed chaos at Apple stories is no accident. Staff are instructed to make customers feel welcome, letting them stay and play with the iPhones, iPads and other cool products for as long as they want. As customers develop a sense of possession, as their physical connection deepens, their estimate of the iPad’s value goes up.”
“Columbia University…goes a step further. It physically closes the gates to College Walk on a single quiet Sunday morning during the summer, not for maintenance purposes but to demonstrate that it can keep you out and is granting permission for you to enter.”
“The Mickey Mouse Protection Act is unlikely to produce any public benefit whatsoever, not a single cartoon character or song. It’s pure corporate welfare.”
“Copycats actually help the fashion industry innovate.”
“The so-called first mover advantage is a powerful reward to creative labor and one that comes without many of the downsides of formal ownership.”
“What if we switched the ownership baseline for our DNA?…We have been able to change the baseline in other ownership contexts.”
“The Wild West of no-ownership works for fashion, jokes and sports plays, but not so well for genes, locations, faces and clickstreams. What’s the difference? Perhaps it’s all these types of data share a common thread, one central to ownership design today: individually they count for little, but collectively they are worth everything.”
“Our attachment intuitions are often far from ownership reality. Ownership does not reach to heaven and hell. Your home is not your castle.”
“Today the estate tax applies to just two of every thousand people who die. It is a laser-targeted tax focused on those who can most easily afford to pay. Yet repeat continues to enjoy popular support—up to 70 percent. As Graetz says, this untaxed transmission of extreme wealth is “one of the most effective legislative campaigns in recent times”…But estate tax repeal is just a start. The billionaires’ club has a more elaborate game plan.”
Commentary, asides, loose thoughts, unfair complaints
I suppose one odd thing for me about the book is that it talks about ownership in terms of six “stories” that “stand for all the ways scarce resources initially come to be owned”, which are: first come first served; possession is nine-tenths of the law; you reap what you sow; my home is my castle; our bodies our selves; the meek shall inherit the earth.
And yet, pretty much from the first chapter on, a lot of the time there’s really a seventh master narrative that really should make much of the rest of the book irrelevant: might makes right. Which in some sense is neither a story nor a law: it’s an empirical fact when it occurs and largely extra-legal in its major manifestations and forms. The authors say as much several times, particularly in writing about possession as nine-tenths of the law. The first chapter is about “first come first served” and they start off by saying “well, that would seemingly confer ownership of North America to Native Americans, only not so because it’s really about who decides who was first and that was the Supreme Court under American law ruling that first meant “the first European Christian discoverers”. As they note, that’s essentially saying “conquest means you can define yourself as first”. At that point, though, you begin to wonder if taking an interest in the stories we tell about ownership is missing the point, because those stories just seem like post-facto ideologies that disguise the truth of things, which is more or less the point that critical legal theory has been making for a while—and the book ends up looking like it’s telling us about the complicated aesthetic principles that lead lawyers, judges and politicians to favor one story over another when they’re applying them to ownership claims that were actually determined by force or brute financial power.
I protest a bit too much here, I concede—a lot of the book concerns how ownership stories end up creating consequences by structuring contestation over ownership after those stories are set in some form or another through legal rulings and political decisions.
The presentism and universalism of the book’s perspective also leads the authors to present certain kinds of contemporary struggles around and over ownership as consistent with a long and unchanging history, but I kept thinking again and again that the US economy since 1995 or so is awash in the kinds of cases that make for good illustrative stories because dramatic income inequality has provisioned a perishingly small number of people the financial power to essentially violate every prior ownership covenant or story in their own favor. Meaning, first come first served is inconvenient to the ultra-wealthy so they find ways to undo it. Possession is one-tenth of the law is inconvenient to the ultra-wealthy if someone who has something they want won’t give it up, so they circumvent those claims to ownership. The authors frequently center on cases where popular debate is evenly divided, and sometimes the divide really does seem to be about more than the entitlements of wealth. But much of the time, that is at least the subtext and more often than not the text of the struggle. The guy who pays to board first on Southwest moves someone’s iPad from the seat he wants because the iPad is meant to save that seat for someone who will be boarding much later. The people who side with the guy are the people who plan to use wealth similarly to buy ownership rights; the people who side with the seat-saver are those who want to morally reject the power of the wealthy to set the terms of ownership always to their own advantage. By the end of the book, the authors are making the same point—that the design of ownership in 2020s America is increasingly being subverted across all the forms of ownership by the power of the ultra-wealthy. I supposed I ended up feeling as if that was the real story to a degree that makes some of the other anecdotes and cases in the book seem relatively unimportant.
I felt pretty certain that the Bay Boys of Lunada Bay in Palos Verdes California would be making an appearance sooner or later in the book, and yep, they show up in Chapter 2. This is a gang, more or less, of white male middle-aged trust fund babies who have infamously tried to claim exclusive rights to surf at a public site in Southern California—right below where I went to high school, in fact. That was only one of many instances where I said to myself, “There’s another story here that doesn’t get told very often in the book, which is what happened before the Bay Boys?” I used to walk down to Lunada Bay all the time and before these goons built their little fort and started assaulting anyone who tried to surf there who wasn’t in their group, there were just surfers there and it wasn’t a big deal, there were no ownership fights. There are two histories the authors just aren’t that interested in engaging tied up in these moments: first, that there really are plenty of situations in world history where there have been commons or where resources have been held in usufruct (shared communal ownership) and second, that scarcity is in many cases a created rather than natural phenomenon that is used to generate surplus value for some group. The Bay Boys use their violent seizure of a commons to make their homosocial bonds stronger, to make in-group identity more valuable. People who bought up Playstation 5s or Nintendo Switches were intensifying or engineering a shortage so that others would pay them a premium to get the commodity.
And we live in times where the infrastructures of ownership are being more and more frequently deployed to collect rents from engineered scarcity, and austerity discourses even in wealthy organizations are used to the sensation of scarcity and the squabbles it engenders. Chapter 4 mentions, for example, how commercial foraging for fiddleheads in Maine changed the situation for many landowners—something that was tolerable when it was just folks from the community gathering enough for their own use became intolerable when it was a company with employees stripping land they didn’t own. E.g. when some form of organized capitalist enterprise transformed what had been closer to usufruct usage. And that really seems like it’s a thing of the moment—that we are in a new era in which all forms of public goods and all remaining commons are being conquered by “disruptors”, by intensifying wealth, and the ways in which they make what was plentiful scarce even though there’s as much of it as there ever was before.
The analysis of the role of partition sales in the impoverishment of rural Black families after the Civil War is something I’ve come across before but it’s a good, accessible description and worth passing on to anyone who professes that they don’t see how structural poverty and race have been connected in American history.
In the end, I just wish that a book that’s primarily about the United States would understand itself as having that limited scope. A much wider comparative and historical scope would, I think, reveal the particularity of what the authors are saying about ownership—that what we have today is a product of colonial conquest (and several interlocking legal frameworks derived from different colonizers) and of the history of American capitalism, particularly its development in the last forty years. There are intellectuals on the left who get overly romantic or simplistic about historical systems or current alternatives that involve shared ownership, implicit commons, or deliberate refusals to assert or honor ownership claims—in reality, this is always more complicated, and plenty of societies that had something like usufruct ownership in the past also had forms of “might makes right” involved in the mix, or informal forms of private annexation of shared goods and resources that were not defended by laws or sovereign power. But the point here is that not only can we design ownership differently today to escape the destructive consequences of our current systems (something the authors advocate strongly) we can see in a wider comparative frame that our present systems are neither inevitable nor natural.