## Metadata - Author: [[Michael A. Heller and James Salzman]] - Full Title: Mine! - Category: #books ## Highlights - HBO’s CEO Richard Plepler proudly described the company’s pro-piracy strategy as “a terrific marketing vehicle for the next generation of viewers.” Password sharing, Plepler continued, “presents the brand to more and more people, and gives them an opportunity hopefully to become addicted to it.” In a quote that lit up the Internet, Plepler added, “What we’re in the business of doing is building addicts, of building video addicts. The way we do that is by exposing our product, our brand, our shows, to more and more people.” ([Location 200](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=200)) - Here’s the punchline: there’s no avoiding the hard work of deciding who gets what and why. You can turn to a third party, like a judge or a legislator, to answer on your behalf. But that just means putting someone else’s hand on the remote control. Or you can participate in making the choice yourself—as an owner, a consumer, a citizen. Do you favor chance or reason, time or money, speediness or strength, justice or efficiency, reward or punishment? Unavoidably, you reveal and encode your deepest values in every decision you make about ownership. ([Location 330](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=330)) - Adverse possession reflects the power of physical connection, an urge rooted deep in human psychology. As Oliver Wendell Holmes, Jr., an esteemed Supreme Court justice, wrote back in 1897: A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the fact and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man. ([Location 816](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=816)) - While we value ownership, as a society we have often rewarded active physical possession even more. And for good reason. In general, compared with absentee owners, adverse possessors defend their claims more vigorously, are easier to identify, and put land to developmental uses that our culture esteems. ([Location 824](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=824)) - ownership is always a choice among competing narratives backed up by the state’s coercive power. ([Location 860](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=860)) - We have no neat or simple answer to Might makes right. All we can do is note that one blunt equation often governs the fight to control scarce resources: Possession + time = ownership. ([Location 885](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=885)) - Politically, there’s not much lobbying for legislation in the public interest; psychologically, no one wants to give up something they already own; and constitutionally, the Fifth Amendment protects owners from having their property taken “without just compensation.” Once created, ownership is hard to roll back. It is a one-way ratchet—a reality that counsels for caution before we create even more rights. It’s painful to disinvite friends from the party. ([Location 1602](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1602)) - To the designers whose work is copied, copying may feel like a rip-off or theft. But it’s not. Theft, like ownership itself, is a legal conclusion, not an empirical fact. In America, there’s no protection for the labor that goes into fashion design. ([Location 1613](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1613)) - Tweeting can be more powerful than the courts. Being first to market can be decisive. Politeness and manners steer behavior. Legal ownership is just one tool for social control—a visible and salient battleground, to be sure—but it is often not the most effective way to motivate and reward creation. Nonlawyers and lawyers alike make this mistake, overvaluing law and missing effective alternatives. ([Location 1625](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1625)) - Many economic arenas thrive with no ownership rights for producers. As Raustiala and Sprigman show, comedians do not copyright their routines; chefs do not own their recipes; sports coaches’ innovative plays are all freely copied. And yet new comedy routines, recipes, and sports plays are created all the time. ([Location 1635](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1635)) - 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 that 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. ([Location 1843](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1843)) - As far back as the thirteenth century, landownership was said to extend in a column “up to the heavens and down to hell.” That expansive notion becomes even more robust around our homes. In 1628 Sir Edward Coke, the great codifier of Anglo-American common law, wrote, “A man’s house is his castle.” ([Location 1884](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1884)) - When your neighbors’ trees shade your solar panels, or their windmills disturb your air flow, are they taking property from you? Everything you own above your land is a distinct choice—perhaps implied and shaped by medieval maxims, British traditions, and American practice, but not commanded by them. It’s all up in the air, as it were. ([Location 1902](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1902)) - So far as we know, every legal system for all recorded history follows a rule of increase regarding farm animals, in which the owner of the mother owns the offspring. According to the ancient Laws of Manu, “Should a bull beget a hundred calves on cows not owned by his master, those calves belong solely to the owners of the cows; and the strength of the bull was wasted.” This rule has remained constant from four thousand years ago in India to everywhere in the world today. Why? Newborns quickly reveal their mothers, while paternity is uncertain. Moreover, the calf depends on its mother for survival, so uniting them in ownership most likely ensures the calf’s survival. Every factor that goes into ownership design points here in a single direction. ([Location 1909](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1909)) - If newborn farm animals are the easiest case—humanity’s only universal attachment rule—then the boundaries of landownership may be the hardest. All the variables of ownership design are in constant conflict. ([Location 1917](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1917)) - In early America, wild-caught food was an important nutritional resource. So states favored labor and possession (I worked hard to gather those fiddleheads) over attachment (Those fiddleheads are mine because they’re attached to my land). That right to roam was the universal rule at America’s founding—a deliberate anti-aristocratic rebuke to England, which reserved rich hunting and foraging lands to large landholders and the Crown. ([Location 1934](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1934)) - the invention of barbed wire in the late 1800s upended the meaning of landownership in America. Barbed wire was a cheap way to send a powerful message: It’s my land—and, by the way, the stuff on it is mine, too. Keep out! But people can climb barbed-wire fences or cut through them. So landowners pushed to change the law as well, using the attachment principle to create an invisible fence. ([Location 1938](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1938)) - Attachment is a powerful core intuition for ownership. It’s the principle that translates an airplane boarding pass into my wedge of space; a land deed into control of my crops, trees, animals, wind, solar, water, oil, gas, and countless more resources. Through attachment, the owner of an existing thing—whether land, cow, or copyright—comes to own new things plausibly connected to the original. But why is this so? At the most basic level, we need straightforward rules that assign initial ownership of newly valuable resources. This helps keep people from fighting with each other too much in the scramble to claim the unowned. That’s true not just for calves and buried treasure but also for drone flyways and fracked oil. For newly emerging resources, we often lack any preexisting rule at all. Attachment often fills that vacuum, first in practice, then as a matter of law. ([Location 1995](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=1995)) - But is attachment fair? Often, no. That’s a big downside. As Merrill emphasizes, the principle “has built into its very operation a set of doctrines that mean the rich get richer.” Wealth concentration does not always result, but attachment tends in this direction. If we grant new resources to established owners, there can be a multiplier effect where “those who already have significant property continually get more.” ([Location 2009](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=2009)) - The problem with natural resources is that we often design initial ownership rules when the resources are in abundance. ([Location 2059](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=2059)) - habit. As William Blackstone wrote in 1787, in the first general and accessible synthesis of English law, property law “is now formed into a fine artificial system, full of unseen connections and nice dependencies, and he that breaks one link of the chain, endangers the dissolution of the whole.” On the other side of the divide, sharply critical of unquestioning deference to precedent, Supreme Court justice Oliver Wendell Holmes, Jr., wrote a century later, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Much of a lawyer’s training involves learning tools for navigating between Blackstone and Holmes—between embracing the value of continuity and advocating for needed change. ([Location 2078](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=2078)) - Note: Makes me think of coherentist accounts of reason - see Julian Baginni, The Edge of Reason - The first oil rush occurred in Titusville, Pennsylvania, back in 1859. ([Location 2132](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=2132)) - As it turns out, in most of the world, they don’t. One hundred forty-two countries, including well-off ones like Japan and Chile, say underground natural resources belong to the state as part of the common wealth—flowing oil, gas, and water are like the air we breathe or the oceans we fish. Landownership means you control certain rights on the surface and close to it, but attachment does not reach much below ground. What seems a “natural” feature of private landownership in the United States appears to be a downright bizarre choice in most of the world’s market economies. ([Location 2166](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=2166)) - The practice of “beach nourishment” started with Coney Island in 1922. Today it involves moving extraordinary quantities of sand from offshore seabed dredging or inland quarry mining onto the shore. Florida alone has spent $1.3 billion to nourish 237 miles of its beaches over the past eighty years. In 2017 the U.S. Army Corps of Engineers dumped hundreds of thousands of tons of sand to shore up just one three-thousand-foot stretch of Miami Beach, with an $11.5 million price tag paid by local, state, and federal taxpayers. The most extracted mineral in the world today, exceeding by weight all the fossil fuels we pump, is sand and gravel, used for beach nourishment along with fracking, land reclamation, concrete, and glass. Sand has become scarce; extracting it is imposing ever-escalating environmental harms. ([Location 2198](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=2198)) - Without attachment, most fisheries and deep sea oil fields would be in international waters—governed by the rule of capture and vulnerable to the tragedy of the commons. On the high seas, beyond national control, vessels compete to harvest as fast as possible and fish stocks decline. That’s what happened to whales in the 1800s, when fleets sought blubber for lamp oil (overharvesting of whales is part of what created a market opening for land-based oil drilling). ([Location 2246](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=2246)) - The arc of self-ownership has bent toward greater inclusion. African Americans, Asian immigrants, Jews, women, and others were once restricted from specific types of ownership because of their group identity. Yet over time, their capacity to own has steadily increased. We call this the universality impulse, and it is an unremarked feature of ownership design: after a form of ownership is made available to one group, usually white men, pressure builds over time to include others, until the form is equally available to all. ([Location 2586](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=2586)) - If you want to uncover the rules of ownership, there’s no better place to start than by mastering the art of reasoning by analogy and distinction. ([Location 2733](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=2733)) - About 20 percent of American workers are currently subject to a noncompete agreement, and almost 40 percent have signed one at some point in their working lives. Hospitals lock up doctors so they can’t move to competitors; same with actors on television series, and coders in tech companies. And it’s not just highly paid professionals whose capacities are tied up—the restrictions often cover temp warehouse workers, hair stylists, yoga instructors, even teenage camp counselors. ([Location 3042](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3042)) - Many employers routinely insert noncompete clauses into employment contracts even in states where they are unenforceable. Why? People often wrongly believe their signature binds them, even to illegal terms. Companies take advantage of this psychological vulnerability to deter consumers from asserting their rights, just as landlords insert unenforceable clauses in leases to scare tenants. Most people are afraid to be sued, cannot afford legal help, and don’t know the terms don’t bind them. The result is that even unenforceable restrictions can tie employees to jobs for years, preventing them from seeking higher wages or escaping abusive bosses. ([Location 3050](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3050)) - Before Independence, half of white settlers from Europe came to America as indentured servants, bound for years to their owners. People indentured themselves for boat passage to America, to bring over close relations, or to support their families. This was a harsh deal: during the indenture, they could be sold like enslaved people or pledged as collateral for loans. ([Location 3062](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3062)) - Any justifiable notion of self-ownership requires concern for our future selves—for the ability not just to write one contract one time, but to rewrite essential aspects of the story of our lives. Enslaving ourselves is outside the bounds of choice in a free society because it gives too little weight to our future well-being. ([Location 3066](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3066)) - For years, big employers have been pushing to expand the grip of noncompetes as unions have weakened. They justify noncompetes by saying lockups motivate investment in training low-wage workers. Why invest in employees if they can immediately take their skills to rivals? Yes, they concede, noncompetes may lock in workers, but in exchange, they produce higher-skilled workers who earn higher wages. ([Location 3075](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3075)) - Finally, some states categorically refuse to enforce noncompetes. For over one hundred years, California, North Dakota, and Oklahoma have just said no—no to fully informed noncompetes, no to limited noncompetes. Employers in these states may use employment contracts to protect confidential information and trade secrets—so employees don’t walk off with client lists—but not much more than that. Here’s one data point in support of the refuse-to-enforce-any-noncompete approach: Silicon Valley emerged, not by MIT in Massachusetts, but next to Stanford in California. Several studies attribute part of the difference between these tech hubs—and this is trillions of dollars in value and hundreds of thousands of jobs—to noncompete clauses. Silicon Valley thrives because workers can and do easily move from job to job, pollinating ideas from company to company and turbocharging innovation. That is harder to do in stodgy Massachusetts, where noncompetes have long locked workers in place. ([Location 3088](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3088)) - Ownership within families spans a vast terrain, full of opaque rules that quietly build mountains of wealth high above plains of poverty. ([Location 3107](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3107)) - Currently, Black farmers constitute less than 1 percent of American farmers, and Black families continue to lose farms at a rate three times that of whites. ([Location 3147](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3147)) - Many poor Black farmers in the South were suspicious of local white lawyers, and for good reason, so they never made wills. This suspicion continues today, even among some wealthy Black people. Aretha Franklin and Prince could well have afforded the very best attorneys, yet both passed away without making wills. Overall, three-quarters of Black people do not have wills, more than double the percentage of whites. ([Location 3149](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3149)) - American co-ownership law offers no effective support for managing shared property. Just the opposite. It assumes people will want to split from each other so they can have their own separate property, and it encourages them to do so. In American state law, if one grandkid fixes the leaking roof, there’s no way to force the others to chip in. The repair cost can be recovered from the other owners only after the home is partitioned and sold. So that’s what happens. ([Location 3165](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3165)) - managing co-owned property difficult, not just repairs. It can be impossible to get a loan with just a partial ownership interest, so the land remains undeveloped. Often you can’t get disaster relief either. Following Hurricane Katrina, up to $165 million of recovery funds went unclaimed because of difficulty in proving ownership of heir property. As a result, heir property often remains run-down and unimproved. ([Location 3169](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3169)) - Today median wealth among white families is about ten times higher than among Black families. The history of Black land loss is one of the contributors to this racial wealth gap. Says one heir property researcher, “If you want to understand wealth and inequality in this country, you have to understand black land loss.” ([Location 3182](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3182)) - Many European countries have social policies and laws that help keep family farms intact. German law requires immediate reimbursement when one co-owner makes essential repairs, in sharp contrast with the American rule that reimbursement comes after partition. The German rule encourages maintenance and continued co-ownership rather than decay and partition. ([Location 3193](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3193)) - During a reform attempt in 1934, another member of Congress said, “The administrative costs become incredible. On allotted reservations, numerous cases exist where the shares of each individual heir from lease money may be 1 cent a month. The Indians and Indian Service personnel are thus trapped in a meaningless system of minute partition in which all thought of possible use of land to satisfy human needs is lost in a mathematical haze of bookkeeping.” ([Location 3228](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3228)) - Why did Ruth Brown lose her Mississippi farm? Why does Tract 1305 on a Dakota reservation generate such frustration? Partition and lost inheritances result from too much focus on exclusion at the expense of good governance. The exclusion-governance balance is a central lever of ownership design. Our gut reaction to the “what is ownership” question often comes from a place of exclusion. It’s the keep out sign we nail to the barbed-wire fence. In the enduring words of William Blackstone, the great codifier of English law, writing in 1763, private property itself is “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” If it’s mine, it’s not yours. Much old-fashioned American law assumes that sharing is the problem and exclusion provides the solution. So when states see co-owners—like Ruth Brown and her relatives—they offer partition to aid them in quickly separating from each other. ([Location 3249](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3249)) - The mythic virtue of sole ownership runs deep—and is deeply misleading. The reality today is that, overwhelmingly, wealth in market economies is held not by individuals focused on exclusion but by groups of people working together. Think about marriage, condominiums and cooperatives, unitization, trusts, partnerships, and corporations. All these are successful examples of what Heller and Hanoch Dagan call liberal commons property—ownership designed to help groups of owners cooperatively govern scarce resources while preserving the essential autonomy of every individual. Liberal commons forms are also at the frontier of ownership innovation in environmental protection, like the catch share and cap-and-trade programs we discuss in Chapter 7. ([Location 3257](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3257)) - Through careful ownership design, England’s wealthiest families were able to perpetuate themselves as an elite class that has endured for centuries. A recent study showed, remarkably, that many of the most powerful English family names in 1170—decades before the Magna Carta—still enjoy high social status more than eight hundred years later. And England is not alone: the richest families in Florence, Italy, today substantially overlap with the richest in 1427. ([Location 3369](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3369)) - How can we be so sure about predicting today’s news? Because ownership is the scaffolding that society uses to structure every struggle over the things we all want. That’s a lot of things. And where should we look to see the future of ownership? Anywhere people are chasing scarce resources. That’s everywhere, really. ([Location 3697](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3697)) - Crab fishing in Alaska has long been one of the most dangerous jobs in America. From 1989 to 2005, scores of people died in the fishery. Ten boats sank. For years, crab fishing on the Bering Sea was “the deadliest job in the country—more likely to kill you than going on foot patrol in Iraq.” ([Location 3806](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3806)) - To date, catch shares have been adopted in forty countries and already account for about one-fifth of the global catch. It’s no surprise the strategy has been called “the greatest unknown policy success of our time.” ([Location 3904](https://readwise.io/to_kindle?action=open&asin=B08B5F7NNY&location=3904))