To Have and to Hold

Aristotle’s observation that philosophy begins in wonder has, for many, conjured up an image of a curious child, bright-eyed and fascinated with the world around him. Similarly, in this book about the philosophical and psychological concepts that undergird the notion of private property, law professors Michael Heller and James Salzman present an image of another kind of child—grasping, avaricious, and jealous: behaviors we’ve all experienced and would rather forget.

 

The word “mine,” which the authors describe as a “primal cry,” is one of the first that children learn. This aspect of human development is the starting point of the book’s discussion of ownership. Beginning with such an image has positive and negative features. On the one hand, it shows that ownership and private property are natural and essential aspects of what it means to be human. On the other, it shows that selfishness is inherent in the concept of ownership and that private property may be seen as the result of self-centeredness.

 

Just as human nature is complex, so too are the rules of ownership and the complexities of different societies and different ages—especially when new situations are brought on by technological advances. Mine! is a tour de force examination of the maxims of ownership that aren’t always what they seem. Far from being as dry as a bundle of sticks, the book opens up the world of property law to a general readership through the use of interesting contemporary cases, which allow the authors to apply the traditional principles of property law.

 

The ownership maxims examined are those we have heard for years: 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. According to the authors, none of these sayings is quite true on its face when applied practically. They show how the design of ownership rules—in all its evolutions and variations—directs our behavior and is a powerful means of social engineering.

 

This concept of ownership design is the main thrust of the book. Particular examples highlight the development of ownership laws and the complexity of the issues hidden beneath these seemingly easy-to-understand maxims. Several of these examples are illustrative:

 

• Does the Chicago resident who shoveled the snow for a parking space on the public street in front of his apartment have a right to that space? What if he placed two folding chairs there to call “dibs” on it?

• Do pavement contractors get to keep the treasure trove of gold eagle coins they found while paving the driveway of another person’s property?

• Can a big corporation suck up the groundwater beneath the properties of neighboring landowners?

• Can a woman sell her eggs if doing so creates an unequal market in which premier “egg donors” are paid more based upon higher education, high SAT scores, blonde hair, blue eyes, and athleticism?

• Are you free to partition your property and other assets to your next of kin if doing so has adverse effects on the poor  and ultimately deprives them of land ownership?

• When you “purchase” a digital asset like a movie, book, or song, only to have it disappear later as technology changes, do you have recourse or recovery, or does the fine print of user agreements allow that asset to vanish without consequences?

 

Each of these examples challenges the notion of what it means to own something and shows how the concept of ownership has changed along with the changes in technology and society. Mine! offers an excellent discussion that shows how our legal traditions attempt to deal with new questions and new situations.

 

In one sense, the challenges to ownership law presented by changing circumstances are nothing new. The genius of English common law, which has influenced the development of law in the United States, is that it “discovered” principles of law derived from the experience of a variety of controversies over generations. It has applied the lessons of those past controversies to new realities. 

 

Where the strict application of legal precedent resulted in inequities, there were always mechanisms to temper the blunt instrument of the law. This still applies to our domestic law today—it has never been perfect; thus there will always be arguments about public policy, and a robust participation in our republican form of government will always be needed, especially at the state level.

 

Yet for all of the foregoing, one must acknowledge that today there is a certain impatience with the processes of legal reasoning and a diminished respect for the legal tradition that the U.S. inherited largely from England. In the current legal milieu, the axioms developed from common law lose their force, and that which is considered expedient or egalitarian tends to dominate.

 

The concrete cases Heller and Salzman cite are interesting and serve to creatively bring to life centuries-old principles that many, in their chronological snobbery, would dismiss as outdated products of prior irrelevant centuries. As much as the authors succeed in demonstrating how these legal maxims of ownership are part of our cultural makeup and how deeper thought on these issues is essential, they nevertheless show that their opinions emanate from the modern legal academy. 

 

It would be too facile to make this judgment based upon the approbations given by the prominent legal scholars on the book’s dust jacket (though such marketing techniques tend to raise the proverbial judicial eyebrow). Rather, the left-wing legal bias of Heller and Salzman is confirmed by the predictable modern shibboleths—extreme environmental protectionism, anti-racism, and benevolent statism—as opposed to a traditional federalism represented by the U.S. Constitution. In some cases, such as in disputes between industry and Texas residents over surface rights, Heller and Salzman express impatience with legislative processes and would prefer legislation from the bench, allowing judges to set public policies with far-reaching effects.

 

The authors are also safe in taking pot shots at people like Leona Helmsley or Donald Trump, past and present villains according to the modern liberal establishment, but they are curiously silent on people like Amazon Founder Jeff Bezos or Facebook Chief Executive Mark Zuckerberg. To their credit, however, the authors see the growing danger of the new tech oligarchies and are forthright in acknowledging it. Yet the concentration of wealth into the hands of fewer and fewer tech billionaires is hardly mentioned.

 

Likewise, Heller and Salzman give significant coverage to the subject of humans owning other humans and the “original sin” of slavery in the U.S., as well as its aftereffect of influencing the poverty of black Americans. This, without even a passing comment on the systematic destruction of the black family by other government policies. In this case, what is politically safe to discuss within the authors’ peer groups, rather than a consistent criticism based upon principle, seems to dictate what they write.

 

In spite of these flaws, Mine! is an excellent book to spur discussion on ownership design and to acquaint a larger lay audience with concepts that had been the preserve of law schools. The book is also helpful in its assessment of current thought trends on ownership and the practicalities of behavior modification on individuals who participate in a variety of different ownership scenarios.

 

For the most part, Heller and Salzman are even-handed, but the reader should nevertheless proceed with caution, especially regarding the aforementioned shibboleths. The way they treat these politically contentious topics is reminiscent of Justice Oliver Wendell Holmes, Jr.’s opinion that truth is “the majority vote of that nation that can lick all the others.” There is a lack of real analysis here, which, to be fair, might be beyond the scope of the book but which nonetheless is just as axiomatic as the maxims that the authors deconstruct. This uncritical approach portends ever more shifting sands, less coherence and predictability in the law, and therefore less protection of the law for property, or for anything else.