Being a believer in Coase’s irrelevance “theorem” (see corresponding CALI lesson by me), I bring you a peeve springing from a podcast’s discussion of knee defender (a product that prevents the airline seat in front of you from reclining, which led to a recent fight on a plane, the plane’s diverted landing, and the arrest of the fighting passengers), which referenced a pundit’s (Barro‘s) quip that since nobody has offered to bribe him not to recline, little demand for no reclining exists. The podcast was also critical of reclining generally (as it is of warning motorists about speed traps), which raises the issue of hidden, surprise norms.
First on Coase. Bribing someone not to do something that annoys you is completely counterintuitive and counterproductive. It sounds and feels like extortion and perhaps we have an innate intuition against extortion. Maybe a jurisdiction existed, in the history of human development, where it was acceptable and habitual for some to pay others not to engage in annoying activities. However, nobody lives there any more because it got too annoying, since this functioned as an incentive for annoying behavior. How do we get from this point (my anti-extortion exception to acceptable Coasean bargaining) to worlds where ranchers bargain with farmers or quiescent spas with percussionists? I think social interaction follows the golden rule of do unto others as you would have done unto you (I accept gradual moderate reclining especially while napping and am very thankful indeed for speed trap warnings) and polite counterrequests not to recline are easy and possible (and we luckily have judges to protect us against oversensitive cops). Farmer-rancher and spa-percussionist interactions are different in that they happen at the professional level. Ranchers and farmers do not know eachother’s cost-benefit calculus making bargaining acceptable, as I think it is between neighbors with different attitudes about noise or lawn care. That having been said, my sense is that airline seat design seems to be sensitive to the various concerns because it seems to have shifted to minimal reclining in short flights or cramped rows and more reclining in transoceanic flights, where, also, the flight attendants do ask passengers to lift their seats for meals. So, anti-reclining demand seems to be producing results, consistent with Coasean reasoning and contrary to the intuition of Barro. Notice the unusual power of Coase here, since two of his conditions, the clarity of rights and enforceability of bargains, seem to be lacking in the social context of seat reclining (but not in neighborhood lawn care? Or is that why people pay a premium to live in associations? Coase all the way! Is it Lee Fennell or Jay Weiser who discuss premiums paid for association houses? Maybe both.). Perhaps I am wrong on reclining and it is clearly a right, not only because the button is on the handrest of the recliner (rather than the seat back, as the podcast points out) but also and especially since the airlines have banned knee-defender. The airlines also offer some seats with protection against reclining, the bulkhead and the exit row seats (maybe airlines could increase the number of non-reclined-against seats or charge the knee-defender premium for them). Thus, those seeking no reclining can obtain it by taking such seats instead of bribing Barro, buying knee defender, or trying to create a norm against it.
Second on surprise norms. No no no no, thou shalt not spring your righteous surprise norms on me. Western legal and social arrangement rests on the foundation that what is not prohibited is allowed. I can press my recline button and I can blink my brights to oncoming motorists at the cost of flying next to crying babies and driving behind those doing under the speed limit. (But in Sunday’s NY Times magazine, in Branson’s interview, he mentioned that he wants or tried to have his airline move toward children’s cabins, a development for which my ears are praying albeit from behind BOSE noise-cancelling headphones). To my reasoning, a necessary corollary of the rule of law is the non-rule of non-legal norms. When a need for a rule has enough thrust that it alters the law, then we have some warning about it and perhaps the chance to object against its creation. Holding people to a standard of conduct they do not know and to which they may object seems the height of (
righteous, meddlesome, antiliberal, puritanical, strike four words) unfairness. (BTW, strike is obsolete litigator legalese for delete, dating from the days where the transcriber would back up the typewriter carriage and type XXXX or dashes over the, thus, struck text. That I could perfectly easily delete the words reveals my affectation here, but ignore that.) I have a sense that when I lived in the east coast a lot more of these surprise norms seemed to exist than here in the midwest and it grated. Or I am a rude boor who belongs in that extinct society above.
So, what is the norm in this blogo-podcast-sphere? Should I reveal that I am commenting on Oral Argument of Joe Miller and Christian Turner or should I leave the podcast nameless because I criticize it somewhat? Since law professors thrive on citation counts, I will presume that they would prefer attribution to marginalization despite that I am not in full agreement with everything they say (and who could possibly expect complete agreement in our milieu of professional debaters of trivialities?). I am very thankful for their podcast adding interest to my driving time and for triggering this post.
I hope no norm against run-on sentences and parentheticals exists in the blogosphere, or I am toast! In my defense, please notice that I could not instead drop notes. BTW, drop a [foot]note is legalese for removing from the main text a diversion or interjection and placing it in a footnote, which reminds me…