Why you don't own the right to recline in your airplane seat

Who "owns" the space behind your airplane seat? The airlines don't want you to know

By Michael Heller - James Salzman
March 8, 2021 12:30AM (UTC)
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No Leg Room On Airplane (Getty Images)

Adapted from "MINE! How the Hidden Rules of Ownership Control Our Lives" (Doubleday, March 2, 2021). Used with permission.

Who owns the space behind your airplane seat: you reclining or the squished laptop user behind? And who owns your online life: you clicking around or Facebook selling your most intimate data?

Turns out, these puzzles are both the same puzzle and they share a single answer: you lose. The prize goes to those who know how the simple rules of ownership really work.

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James Beach is a large guy, over six feet tall. On a United Airlines flight from Newark to Denver, the businessman lowered his tray table and attached his Knee Defender. The Knee Defender is a simple plastic clamp available for $21.95 that locks the seat in front. Its website claims the clamp will "stop reclining seats on airplanes so your knees won't have to." Assured of his workspace, Beach opened his laptop.

The Knee Defender claims are real. When the passenger sitting in front of Beach tried to recline, her seat didn't budge. Outraged, she slammed her seat back, popping out the Knee Defender and jolting Beach's laptop. He quickly jammed her seat back up and reattached the clamp. She turned around and threw her drink at Beach. The pilot changed course to Chicago for an emergency landing and both passengers were removed from the plane.

This conflict keeps erupting—most recently on video. On an American Airlines flight from New Orleans to North Carolina, Wendi Williams reclined her seat. The man behind was in the last row, so he could not recline. Instead, he tapped the back of Williams's seat repeatedly, like an irritating metronome. Her video of this high-altitude fracas quickly went viral.

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After each incident, the blogosphere boomed back and forth with indignant commentary. Talk show host Ellen DeGeneres defended Williams: "The only time it's ever okay to punch someone's seat is if the seat punches you first." Delta Air Lines chief executive Ed Bastian took an opposing view: "The proper thing to do is, if you're going to recline into somebody, you ask if it's OK first." Williams didn't ask.

So who's right?

Williams's view is simple: her armrest button reclines her seat, so the space belongs her. My home is my castle, and anything attached to it is also mine.

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Attachment is the most important ownership principle you've never heard of. It's why landowners in Texas can extract underground oil, why California's Central Valley is sinking, why Alaska can sustainably manage Bering Sea fisheries – and why occasional homeowners feel justified in shotgun blasting drones hovering above their backyards. Attachment is what translates two-dimensional boarding passes, land deeds, and maps into three-dimensional control of valuable resources.

But attachment is not the only ownership rule in play. At the beginning of every flight, all seats are in the "full, upright, and locked position." At that moment, Beach had exclusive use of the space in front of him. He had first dibs on the wedge. First-in-time is a second core rule for claiming mine. Kids assert it on the playground; adults invoke it up in the air. It's mine because I was first.  Recall that Beach actually took physical control of the wedge with his Knee Defender. And there's a third rule. Possession. Nine-tenths of the law. Mine because I'm holding onto it. Possession means I get to defend my workspace.

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Air travel brings into sharp focus three conflicting rules—attachment, first-in-time, and possession.

Each side picks the story that gives it the moral high ground, each side wants ownership bent toward its view. But there is no natural, correct answer to mine versus mine battles. Ownership is always up for grabs.

When we ask audiences about the Knee Defender conflict, the answer is always the same, whether we're talking with our law students at Columbia and UCLA or a non-law crowd. Most people respond with versions of "It's obvious." But when we ask for a show of hands, people generally split between Williams and Beach—and everyone looks at each other with incredulity. In a 2020 national poll, about half replied, "If it can recline, I'm reclining," and the other half said, "No, just don't do it." Everyone feels in the right, as did Williams and Beach. That's why Williams felt justified in posting her video and Beach didn't hesitate to shove the front seat forward. Don't mess with what's mine.

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Why are these conflicts breaking out now? There never used to be rage around reclining. Until recently, airline seats had greater pitch, or space between seats—enough both for reclining and for lowering the tray table. No one thought to ask who controlled the space because it didn't much matter. But airlines have been shrinking the pitch in economy class, down from 35 inches not that long ago to just 28 inches on some planes.

There's a lot at stake for the airlines: one inch of pitch saved per row can add up to six extra seats per flight to sell. To grow profits, airlines are squeezing ever more passengers inside a fixed steel tube—at the same time that people are growing bigger and tray tables have become precious computer stands. The stakes are high for passengers as well. In the COVID-19 era, each inch of personal space can feel like a life or death matter. So, passengers get angry at each other. But why aren't they angry at the airline?

It turns out neither Beach nor Williams really own the wedge of reclining space. The airlines do. And they are savvy pros at ownership design. As Ira Goldman, the inventor of the Knee Defender (whose website traffic increased five-hundred-fold after the Denver flight incident), described: "What the airlines are doing is, they're selling me space for my legs, and they're selling you the space—if you're sitting in front of me—they're selling you the same space to recline. So they're selling one space to two people."

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Can the airlines do that?

Yes. In 2018 the Federal Aviation Administration declined to regulate airplane seats, leaving their design to the airlines. In turn, the airlines use a secret weapon that lets them sell the same space twice on every flight. The weapon is strategic ambiguity, a sophisticated tool of ownership design. Most airlines do have a rule—the passenger with the button can lean back. But they keep it quiet. Flight attendants don't announce it.

Ambiguity works to the airlines' advantage. When ownership is unclear—and it's unclear far more often than you might imagine—people mostly fall back on politeness and good manners. For decades, airlines have counted on high-altitude etiquette to defuse conflicting claims. That's why Delta CEO Bastian said you should "ask if it's okay" to recline. Passengers negotiate among themselves as they angle ahead in line, nudge elbows over shared armrests, and jostle for overhead bins. Money rarely changes hands. (One study, though, suggests about three-quarters of passengers would agree not to recline if the person behind offered to buy them a drink or snack.)

But as airlines continue to shrink the pitch, unspoken rules over the front-to-back squeeze are breaking down and everyone ends up looking unreasonable. Goldman saw ownership ambiguity as a business opportunity and created a technological solution. The problem, though, is that a unilateral move to lock the seat violates customs of politeness. It feels like taking something without asking.

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The Knee Defender may seem like a silly novelty item, but it reflects one of the great engines for innovation in our society: as valued resources become scarcer, people compete more intensely to impose their preferred ownership rule, and entrepreneurs find ways to profit.

The same clash profoundly reshaped the American West in the 1800s—but there it was farmers against ranchers. The huge cattle drives we love to watch in westerns existed only for a few decades. The numberless herds being moved to market were often roaming over private land, but homesteaders had no ability to keep them out. Cows couldn't read No Trespassing signs and fencing was too expensive. So, cowboys drove cattle over unfenced miles to rail yards in Abilene and Dodge City.

Then in 1874 Joseph Glidden patented his double-strand barbed wire, hailed as "The Greatest Discovery of the Age." This invention, as simple as the Knee Defender, suddenly provided a cheap, effective tool to exclude cattle, drawing a line where homesteaders could make their stand. The Glidden wire was described as "lighter than air, stronger than whiskey, cheaper than dust." Ranchers fought back, engaging in fence-cutting wars that led to shootings and deaths.

By resolving ownership ambiguity in favor of homesteaders, Glidden's invention transformed the Great Plains. Small ranchers went out of business as they had no path to get cattle to market. Cowboys became hired hands on large-scale ranches. For many Native Americans, barbed wire—"the Devil's rope"—effectively ended their nomadic way of life. Barbed wire was essential to creating the No Trespassing version of ownership that defines so much of modern life in America.

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Changes in the technology of ownership can be painful, embittering the range wars on the Great Plains and the knee wars at thirty-five thousand feet. Just as barbed wire gave farmers a way to fence out cattle, the Knee Defender gives passengers a cheap tool to exclude recliners. Both technologies offer people an effective way to assert their preferred claim over ambiguously-owned resources.

There is a difference, though: while farmers made barbed wire ubiquitous, many airlines have banned Knee Defenders. As experts in ownership design, airlines know how to profit from strategic ambiguity. They could "pre-cline" seats, fixing them at a set angle, but prefer to keep selling each wedge of space twice. This way, angry passengers turn against each other with their competing stories rather than blaming the airlines which engineered the conflict. Still better—for the airlines—the discomfort creates a profitable market for higher-priced seats with more legroom and less hassle.

This is the real story driving Knee Defender conflicts.

The identical ownership conflict is playing out today on the Internet, a far more consequential and less tangible arena than airplane seats. Our clickstreams reveal much of our private lives—what we buy, whom we follow, where we live, even how we vote. This may seem a world apart from Knee Defenders and barbed wire, but it's the same dilemma.

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Facebook, Google, and other Internet titans are reclining their data trackers into our virtual laps, earning billions in advertising fees by assembling uncanny profiles based on our likes and looks. Like the airlines, tech companies are experts in profiting from ownership ambiguity. They assert a labor claim – the fourth ancient ownership rule. "It's ours because we worked for it." The companies created the cool websites we love to visit. They argue this labor earns them the right to collect our data and then sell ads that stalk us creepily around the Internet.

But if you know the rules of ownership, you can push back. Clickstreams could be ours because of our self-ownership, "It's mine because it comes from my body." This is the fifth ownership rule, and it's every bit as valid as the labor claim.

One of the central questions for our time is choosing the rule that resolves ownership ambiguity online. Self-ownership or labor? A few places, like the European Union and California, have taken small steps toward giving us the digital equivalent of Knee Defenders and barbed wire. "It's mine. Keep out!" But most everywhere, the answer remains up in the air. And continued ambiguity over which story should rule favors the tech companies.

Remarkably, there are just six simple stories that everyone uses to claim everything. We've already seen five: first-in-time, possession, attachment, labor, and self-ownership. The last one is family – "it's mine because I'm in the family" – governing marriage and divorce, birth and death. That's it.

And here's the point. Conflicts of mine versus mine go on around us all the time mostly out of view, until something like a Knee Defender makes them painfully visible. Then, we have to choose, not just for reclining seats and online clickstreams, but for every resource battle from climate change to wealth inequality. If you are not the one choosing who gets what, then someone else is choosing for you.

Adapted from "MINE! How the Hidden Rules of Ownership Control Our Lives" (Doubleday, March 2, 2021).


Michael Heller

Michael Heller is the Lawrence A. Wien Professor of Real Estate Law at Columbia Law School. He is the author of "The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives."

 

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James Salzman

James Salzman is the Donald Bren Distinguished Professor of Environmental Law, with joint appointments at the UCLA School of Law and the UCSB Bren School of the Environment. He is the author of "Drinking Water: A History."

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