Ep 157: “Hey! That’s MINE!”

Episode Summary

Michael A Heller and Jim Salzman, authors of Mine!, share the hidden rules behind ownership disputes and the secret to better bargaining and leveraging your power as the parent.

Show NotesParenting ScriptsInterview TranscriptGuest Bio

Full Show Notes

There’s one slice of pizza left, and all three of your kids want it. One kid argues that he called dibs on it before it even came out of the oven, so it’s definitely his. Another says that since she had track practice today, she’s the hungriest–and therefore it belongs to her. The third declares that the two slices he already ate were wayyyy smaller than the rest, making him the rightful owner of this final piece. Unable to stop bickering over it, they look to you to decide who gets to eat it….but it seems like all three of them are making a pretty good case!

Decisions like this can feel impossible, but as parents, we face them almost everyday. Not only are there battles of ownership between the kids themselves, but you and your teen also likely argue over who owns their phones, the car, their bedroom, and even perhaps their body. (Who should get the final say on blue hair and belly button piercings?) When problems arise, it’s not always easy to distinguish what belongs to who, and that can make life pretty difficult!

This week, we’re talking about the rules of ownership….and what makes them so complicated. Our guests are Michael Heller and James Salzman, authors of the new book Mine!: How the Hidden Rules of Ownership Control Our Lives. In their work as lawyers and law professors, James and Michael have spent a lot of time thinking about possession and what entitles someone to the rights of ownership.

To help us understand how disputes over ownership arise, Michael, James and I are discussing the six rules that people use to argue that they have possession of something. We’re also chatting about why companies think they have the right to sell your data and covering how you can use your ownership position to teach kids important life lessons.

The Six Stories of Ownership

When your kids are arguing over that last slice of pizza, they’re each telling a different story to prove that they deserve it. This is why settling disputes over ownership is so complicated…since each of the kids is technically correct about having some possession of the slice! 

Michael and James explain that one of the most common ways we claim ownership is through the principle of first come, first serve. We also often believe something belongs to us through the law of attachment: if the armrest is attached to my chair in the movie theater, it  must be mine…..and not my neighbor’s! Possession is another way to claim ownership, Michael and James emphasize. If your teen possesses their laptop, they tend to think they own it–even if you’re the one who paid for it.

Interestingly, the dispute over the principle of bodily ownership is one that’s baffled us for decades, say James and Michael. Some people argue that if something is connected to or extending from their physical body they should have total control over that thing, but not everyone agrees! This is particularly relevant for women’s bodies, when it comes to things like surrogacy or abortion, but it’s also prominent in debates over the right to sell one’s organs or the ability to be euthanized. As a parent, you may experience tension around the topic of bodily autonomy when your teen wants to wear certain clothes you can’t condone or dye their hair a color you disapprove of.

In the episode, we talk about how parents can deal with the challenge of teens who are eager to get eyebrow piercings or sport a shirt with a provocative saying. We also discuss the two other principles of ownership: possession through labor and familial possession!

In some cases, conflict over ownership can spread beyond just person to person combat–when companies believe it’s their right to harvest and sell your data.

How Companies “Own” Your Data

Most of us wouldn’t say that Google or Apple has a right to document and distribute our information, but those companies might say otherwise. They often argue ownership on the principle of labor, claiming that they worked hard to create the search engine, and therefore have ownership rights over customer data, explain Michael and James. 

These companies might say that since you are already on their site, your browsing information also belongs to them through the powers of possession and attachment. In the episode, we talk about how you can defend your privacy and emphasize that only you have a right to data about your internet activity.

One service you might not consider a threat to your data ownership–but you should be looking out for–is genetic testing, say Micheal and James. When you swab your saliva and send it into 23 and me, you’ll learn some interesting facts about your ancestors, but you’re also offering up your genetic data to a company that can then sell it to pharmaceutical and insurance companies. Since the testing companies possess it, they claim ownership to it, and use it to turn a profit. 

Having ownership over something gives the owner quite a bit of power, which is why companies want to own our data so badly! In the case of business, they want to gain the power of capital, but for parents, the power of ownership can have a whole different dimension.

How Parents Can Harness the Power of Ownership

So the last slice of pizza is just sitting there, waiting for it’s rightful owner to be declared. But the reason kids are looking to you for answers about this particular pizza is because you paid for it! That technically grants you ownership of the pizza, meaning you have the power to decide who gets that final slice.

Having the power of ownership can help you teach kids a lesson about equality! In the episode, we flashback to Micheal’s on childhood. After hearing Michael and his siblings bicker over the biggest piece of pie, his parents instituted a new rule–whomever cuts the pie has to pick their own slice last. This taught Micheal pretty quickly to cut all the pieces exactly even so he didn’t get a smaller piece than his siblings. Not only did everyone get a fair and even slice, but Michael himself learned to be more equitable!

Although it can be used for good, Micheal and Jim explain how some companies use their ownership power to manipulate users. For example, it’s pretty common for teens to swap login information for various streaming services, so they can use Hulu or Disney+ without forking over the dough for a prescription. Although this is technically illegal, sites like HBO Max allow it to continue because it creates video addicts out of young people, so that when they grow up, they’ll end up spending their own cash on the HBO subscription they feel like can’t live without.

In the Episode…

Although the rules of ownership might get us into some sticky situations, they can also help us distinguish what belongs to whom and why. On top of the topics discussed above, we also cover:

  • Why we should all know about the Coase theorem
  • How creating a will can save your kids from financial ruin
  • Why we shouldn’t use analogies to reason with teens
  • How “first come, first serve” can be harmful for kids

If you want to find more of Michael and James’ work, you can find them at minethebook.com. The website houses excerpts from their book, short informational videos, and even a free quiz for teens! We hope you enjoyed listening and we’ll see you next week!

Parenting Scripts

Word-for-word examples of what to say to your teen

1. When two kids are fighting over the same thing, intervene with: 

“I realize because you had it first you think it’s yours. I realize because you’re holding onto it, you think it’s yours. You can’t both have it, here’s what we’re going to do…”

Jim Salzman

2. Drop some knowledge about the importance of understanding ownership narratives:

(Members Only)

Complete Interview Transcript

Andy: Welcome to the show. Really excited to speak with both of you today about ideas from this book, Mine!: How the Hidden Rules of Ownership Control Our Lives. So this is a very interesting topic. Talk to me about how this came to be. Why is ownership something that you felt could fill an entire book and would interest people?

Jim: Sure, thanks Andy. So Michael and I both, we’re law professors. We teach a lot of students, obviously see a lot of… Not so much teenagers so much, but folks who aren’t too far from that. One of the things that really sort of excites us in the classroom is when we can get our students just to see the world differently. It’s like taking their heads in Beetlejuice, like moving it around 180 degrees and like, “Wow, I didn’t realize that.” We both teach this topic called property law, which is a required sort of core class for law school. We both liked the book Freakonomics a lot. In Freakonomics, if you look at Freakonomics as an author, really what Freakonomics is trying to do is to teach you some pretty simple lessons of economics, really incentives matter, but they do it through very clever stories, right?

Jim: So why do Sumo wrestlers cheat, right? Why do drug dealers live with their parents, right? And it turns out that incentives matter. The world looks different once you start looking at individual incentives. Our message in the book is the world looks very different and makes a lot more sense once you start focusing on the different ways that we own things. Michael and I wrote this primarily because we like to teach. This struck as an opportunity to really have the folks who are reading this, when they’re walking down the street and they see a line, or when they’re thinking about how to save a parking space or how to save a seat in an auditorium, what’s really going on here, right? I mean, we were dealing with ownership every day, every minute, right? But we don’t think about it that way.

Andy: And I’d like, you break this down in the book into kind of these like six different categories or six different like stories that we tell about why someone owns something or why someone is able to reserve something. And each one of them is unique and different. And as you get through these six different chapters in the book, you start to understand ownership on a deeper level. The first one was something that I feel like parents here causing a lot of grief in households is I had it first, mine first. I wonder if you could talk about this idea of—

Jim: First come first serve.

Andy: First come first served in the book. Yeah.

Michael: Yeah. So this is a really common everyday experience of being a teenager. Also being a parent. What people are doing is they’re… You go to the movie theater, for example, and one kid sits down and says, “Hey, this seat is mine. I was here first,” and some other kid says, “No, hold on a second. I had my coat over the back of it. I possessed it. It was mine.” And it turns out that what they’re both doing, kids do this all the time, is they’re using these very simple, intuitive stories about what counts as ownership.

Michael: So a lot of conflict turns out to be… From the surface, it seems like, “Well, they’re both just saying, “Mine, mine, mine, mine, mine,”” but when you dig beneath it just a little bit, what you realize is that they’re both telling, the kids are telling, different stories about mine.

Michael: So one kid uses a story, “It’s mine because I had it first, first come first serve.” Another kid uses a story, “It’s mine because I possessed it. Possession is nine-tenths of the law.” And those are two of what turned out to be just six simple stories that everyone uses to claim everything in the world. So, for example, just to give you another simple example, maybe for the adults in the room, when you’re on an airplane, and someone leans back into you on the airplane seat, you might say, “Well, hold on a second. That space in front of me, for my knees, for my laptop, that’s mine. I had it first, or I possessed it with my knees.” And the person in front of you says, “No, it’s mine because a little button on the seat controls the space. It lets the seat lean back. The seat is attached to my seat, and things that are attached to something, mine, are also mine.”

Michael: So that turns out to be a third of these six simple stories, what we call the attachment principle. It’s mine because it’s attached to something mine. So principles like first and possession and attachment, it may seem that what people are saying is somewhat crazy or irrational or they’re just being argumentative. But it turns out that what’s often going on, for adults and also for teens, is that underneath the surface of that mine, mine, mine, what kids and grownups are doing is telling a story about ownership. They’re saying it’s mine because, and the because is first or possession or attachment with the airplane seat or labor. “I worked for it, and therefore it’s mine,” or “I’m in the family. It’s mine because I’m part of this family.” That’s the fifth. And the sixth is “Mine, because it comes from my body.”

Michael: We certainly know a lot of our struggles with our teenage kids are over issues about control of their bodies. Can they get that weird? Can they get the mohawk or dye their hair orange or get the tattoo? Those are all questions about a form of self-ownership, which is the sixth and final story that underlies all ownership claims everywhere in the world.

Andy: And so as parents, we’re a lot of times making decisions like, “Hey, no, you can’t do that. No. Stop fighting. You take it. Neither you get to,” and it’s like, we are, I guess, endorsing a certain of these narratives over others without sort of realizing it. And you guys point out that, you as a parent or a teacher, we sort of like are rewarding. If we’re going with this first come, first serve narrative, then we’re rewarding the kid who speaks up first or who is a little more aggressive versus if we, let’s use one of these other ones, then we’re like rewarding different behaviors, I guess.

Jim: Well, I mean, not necessarily. So here’s what’s interesting, right? If you’re a parent, who’s going to sit in the middle instead of who’s going to get the window seat or who’s going to get the bigger piece of pie? Well, it could be first come, first serve, right? And in terms of time, who got there first. Maybe it’s who got the better report card. Maybe it’s who cleaned up their room. The fact is, and this is one of the key messages of our book, is that the rules of ownership are like a remote control. So whoever controls the resource, whether it could be cake after dinner or the window seat or some other thing that other people want, they basically use the rules of ownership to get others to do what they want. Everyone listening to this I’m sure has had some experience where first person to be quiet or whatever… You basically use access as the remote control.

Michael: So again, my parents, one of the things that they hated the most was listening to us, I have two brothers, I’m the oldest of three, was listening to us squabble with each other. They would rather just do anything to avoid having to listen to the fighting. And one of the things we fought over, always, was who got the biggest piece of cake or pie at the end?

Andy: Whatever it is.

Michael: Yeah. Whatever it was. And it’s a standard parental dispute. What they realized is, they controlled the pie or the cake, and they could use that control. Like Jim said, this is getting into one of the core ideas of our book, it’s that ownership works like a remote control. It’s a form of social engineering. So what they realized is a very simple rule could eliminate all of the squabbling. Instead of them cutting the cake, they had the kids cut the cake, and they used the rule which, you know, most parents know, which is, whoever cuts chooses last. So as the oldest kid, I always ended up being the one to cut the pie, but that meant that I always chose last. But it meant that I learned from a very young age to cut any piece of anything, dessert in particular, into—

Andy: Perfectly fifth.

Michael: Perfect equal, absolutely perfectly equal slices, because I knew for a certainty that I was going to get the smallest piece. So it was super important to cut it exactly geometrically, identically perfect. And that turns out to be, as an adult, still 50 years later, that’s my superpower, to be able to cut anything into precise thirds. Anything. But again, that skill, the point of it from the ownership perspective is that what my parents were doing is they were using their ownership. They didn’t care about equal thirds. What they cared about was no squabbling. So they used an ownership tool, in this case a division rule, to achieve their goal, which was the no squabbling goal. And the equal thirds was an artifact, the ownership piece of it was an artifact of that social engineering thing that drove their control of pie.

Jim: Michael’s superpower is not going to be enough to get him in the Marvel Comics Universe. But it’s something that he developed as a result of that. That was a skill that he learned in order to take advantage of, if you will, this ownership rule. One of sort of the key tips for parenting I think is, there are two key tips that come out I think immediately. The first one is to realize that your control of resources gives you the remote control. So if you are thoughtful about this, you can actually use it in a very constructive way. The second is that when your kids are fighting over something, simply saying, “Share, or don’t be silly. Johnny gets it or Lucy gets it or whatever,” that’s not really addressing the kids legitimate concerns.

Jim: Kids’ legitimate concerns, in many cases, will be they’re each following a different story. So Johnny might say, “Look, I had the shovel. I put it down for a second. First possession.” Lucy says, “I’m holding it. It’s in my hand. Current possession. Possession is nine-tenths of the law.” So instead of saying, “Share it, stop fighting,” a more effective way that actually engages the kids is to say, “I realize that because you had at first, you think it’s yours. I realize because you’re holding onto it, you think it’s yours. You can’t both have it. Here’s what we’re going to do.”

Michael: That’s the punchline. It’s for fairly trivial concerns, like the shovel in the playground, but it turns out to be the same exact debate where you have to choose among competing stories or make visible that there is a choice among the competing stories. The ownership never defines itself. That same process of making the choice about ownership visible is what drives climate change. It’s what drives wealth inequality. It drives some of the biggest issues that we’re live with as a society, not just the sort of immediate ones that we’re dealing with as parents. But whether you’re dealing from the parental perspective or us as a citizen perspective, you’re still in the world of these same six very simple stories that everyone uses to claim everything.

Jim: So let me give you another example that I think your listeners will be able to relate to, and that is who owns your clickstream? So if you go, you do a Google search for, oh, I don’t know, some video game, what you find is, as you start… So, Andy, what would be a good video game do you think listeners would all know?

Andy: Oh. Fortnite.

Jim: All right, Fortnite. Of course. Of course, Fortnite! So, you’re googling something about Fortnite, and what’s strange is that every other website you go onto, you suddenly start seeing these pop-up ads with something about Fortnite, right? That ain’t coincidence, right? What’s happened is that Google, or whatever search engine you were using, they have tracked your clickstream, your looks and your likes, and they’ve sold it to advertisers. And they then engage in targeted advertising. We tend to talk about this as a privacy issue, they’re invading my privacy, but fundamentally, it’s actually an ownership issue. Who owns your clicks? Now the app, the app producers, Google, the others, they’re going to say attachment, right? You left it on my site. It’s a task to something I own, so it’s mine. Or they may say labor, right? We made this great search engine. You’re using it for free. We’ve earned the right to take your clickstream.

Jim: Those are good arguments, but we can push back, right? Just like with the reclining airline seat, we can push back as well. Again, we can say, “No, self-ownership. My clickstream, what I type, that’s part of me, and you can’t just take that. They can’t just reach in and take my spleen. You can’t just take my clicks.” And what’s fascinating is, this is playing out right now.

Jim: So the same stories that we hear on the playground, that we hear at 35,000 feet, that same battle among stories is taking place right now on the Internet. This is worth tens, hundreds of billions of dollars. This is what powers the Internet economy. One of the sort of things I think is super cool about our book is that it shows how playgrounds struggles over as plastic shovel are, in many respects, identical to the same arguments and struggles that are taking place, as Michael said, with climate change, with wealth inequality, and on the web.

Andy: One issue that you guys brought up in the book I found really fascinating is about genetic data. Do we own our own genetic data? And if so, what are the implications of that?

Michael: Well, a lot of your listeners will have had their families swab the little in their mouth, do a little swab of a saliva and then send it into a company like 23 and Me or ancestry.com. There’s a whole huge business today of these gene decoding companies. So for virtually nothing, for $100 bucks or less, they’ll you your genetic ancestry, or they’ll tell you your possible longevity or your susceptibility to certain diseases. Actually, an increasing number of things that you can test and uncover and discover through genetic testing, and you can just do it at home. But one of the puzzles that Jim and I wondered about, it also came up from our students, is why is it so cheap? Like actually decoding your DNA, it’s a pretty complicated process. So why is it so cheap for these companies to offer to you to decode your DNA for $99?

Michael: And it turns out that the real customer of the DNA companies is not you trying to find out your genetic heritage. The real customer is pharmaceutical companies and insurance companies to whom 23 and Me, ancestry.com sell your data. So what they are trying to do is get people out in the world, you and me or our kids, to swab and send in stuff. And they’re willing to give us our information about something that we want to know about, like our genetic history. They’ll give us that virtually for free because we’re not really the customer. It turns out that we who swab, we’re actually the product. We’re what these companies are selling, which is aggregated information about all of us that lets them sell the data to drug companies for drug development or to insurance companies for insurance rate-setting.

Michael: Just like Jim mentioned a minute ago about clickstreams, about who owns your clickstream, and whenever there’s any new resource that arises anywhere in the world, whether it’s a slice of pie for dessert or that shovel in the playground or the wedge of space in the airplane seat or the clickstream, anytime there’s a new resource that becomes scarcer and more valuable, people fight to claim it. They fight to tell one of these ownership stories. The gene data companies are telling the story about labor. They’re saying the reason your genetic data is valuable is because we put in the labor to assemble it into these large databases. So they’re asserting an ownership story. Your data is ours. That’s another area like clickstreams where we can very much push back and say, “No, self-ownership. No, I had it first.” We can tell a different story, but to tell that story, you have to see that ownership of genetic data is an ownership dispute, is up for grabs, is a choice that we have to make individually and collectively about what we want others to know about us.

Michael: It’s already the case, and this may surprise some of your listeners, that even if they haven’t sent in a saliva swab, even if they’ve completely insulated themselves from the genetic data industry, if anybody else in their family, a cousin or an aunt or an uncle or a nephew or niece or a brother or a sister, anybody else in their family has sent in a swab, they’re genetically closely related enough that the gene companies can identify you, individually, even though you individually haven’t sent in any data.

Michael: So already two-thirds of Americans of European heritage can be individually identified not from their own saliva, but from saliva sent in by some other member of their family, a relative where they may not even realize that by sending in, by getting their own data, they’re also giving away yours.

Andy: A little bit scary. It seems like there’s so many ways that we are giving away our data these days without realizing it. Yeah, I found that fascinating. I started thinking about, “Wow, I think a few people in my family have done things like that,” so I’m like, “Oh man.”

Michael: Yeah. Well, it makes you realize that you’re sort of in it together with your family. The world of ownership actually sort of brings you together with your family in ways that may be surprising, and the genetic piece of it, the genetic data piece of it, is really an important and hidden piece of the ownership battles around family ownership. And people don’t realize they’re going on very much all around them. This is something that Jim and I write about in the book and we have part of a chapter sort of thinking about, sort of trying to educate readers about what’s cool and interesting and challenging about ownership of genetic data.

Andy: So how did you guys notice or distill out these six stories? Where did this come from? Is this based on a research or careful observation, or what?

Michael: Well, Jim and I, we both just love teaching. We love working with students. And we’ve been teaching property law, environmental law around these topics, both of us, for about 25 years. We’ve had thousands of students. And one of the things that’s most fun about teaching law students, so students a little bit older than your audience, is that class is really storytelling. So in law school, students read cases. Someone’s fighting with someone. And underneath that fight is some wackadoo story. Our law school classes are largely about these wackadoo stories, and then students in class bring up their examples, “Hey, this is what happened in my backyard. Like my neighbors planting rose bushes in what I thought was my backyard. Do they now own that part of my backyard?” And it turns out, they might. So all the stories in the book come out of largely our experience just talking with, listening to lots of students over many years. Just to give another example, we’ll often ask them like, “Do any of you illegally stream Netflix or HBO?”

Jim: Michael, just to cut it. We don’t ask if they illegally stream. We ask if they share passwords.

Michael: Jim is right. So we ask, “Do you guys stream HBO using somebody else’s password?” And all of our students, these are law students, 100% of them say, “Yes we do.” And we ask, “How many of you realize that that’s illegal? It’s actually a federal crime. It could put you in jail.” But only half of them realize it. But half of them do realize that it’s illegal, and they still do it anyway. So what’s going on there? And it turns out that what we sort of uncovered in that question, like what’s going on when you’re illegally streaming HBO, is we discovered one of the basic sort of principles of ownership design that guides a lot of business today, and especially a lot of how business deals with young people, deals with teenagers. What HBO is doing is they can find out if your teenager is streaming HBO illegally. They can find out if they’re streaming Netflix, but they choose not to do so.

Michael: And the reason they choose not to do so, the reason they let people stream, is that, in the words of the HBO’s President, they’re trying to build video addicts. They want to basically get a young generation, a generation of teenagers, in their words, addicted to these services so that later, they will become paying customers.

Michael: So they’re using their ownership not to get precisely, mathematically one-third equal slices of pie, not to engineer ownership in that way. They’re using their ownership to tolerate theft. They are tolerating theft in order to later build a stream of potentially fee-paying customers. So HBO is also using this ownership in a way that is targeted particularly at teenagers and young adults, targeted in the following way. Everyone knows they’re doing something a little bit wrong. Like my kids know that they’re doing a little bit wrong when they’re listening to music without paying for it. But the companies that own the music are deliberately allowing that to happen in order to sort of recruit them into the ecosystem of their sort of paid service. That’s another very subtle, very powerful, very common form of what Jim and I call ownership engineering. In this case, ownership engineering targeted at young people in particular.

About Michael A. Heller

Michael Heller is a professor, writer and the author of Mine! and The Gridlock Economy. His writings range over innovation and entrepreneurship, corporate governance, biomedical research policy, real estate development, African-American and Native American land ownership, and post-socialist economic transition. He has published several noted academic books and dozens of articles in the leading legal journals and in Science. In each area, his work helps people see and cure ownership dilemmas no one had previously noticed. 

Heller has been voted Professor of the Year by his students. He has keynoted international conferences around the world and given over a hundred invited talks to a range of legal, business, economics, technology, international, and public policy audiences.

Heller is the Lawrence A. Wien Professor of Real Estate Law at Columbia Law School where he has served as Vice Dean for Intellectual Life. Heller has taught at the NYU, UCLA, University of Michigan, and Yale Law Schools. 

Michael lives in New York.

About Jim Salzman

Jim Salzman is the author of Mine! and  Drinking Water. His books have been featured in the New York Times, Nature, and Scientific American. He co-authored the world’s most widely used international environmental law casebook. His articles have been downloaded over 100,000 times.

Salzman is one of the world’s leading experts on environmental protection, counseling governments from Australia, Canada and England to India, Uruguay and China. Twice voted Professor of the Year, he has given numerous university lectures, keynote speeches, and media interviews tied to the publications of his books. Salzman frequently comments in the media on environmental topics and has lectured on every continent (including Antarctica).

Salzman is the Donald Bren Distinguished Professor of Environmental Law with joint appointments at the UCLA School of Law and the UCSB School of Environment. He has taught at Columbia, Duke Harvard, Stanford, and Yale law schools and in Australia, China, Israel, Italy, Portugal, and Sweden. 

He lives in Santa Barbara, California.

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