We forwarded our 3 October blog post “The Right to Recline?” to several scholars, including our gentle friends Terry Anderson, Christopher Buccafusco, and Chris Sprigman. (By the way, Professors Buccafusco and Sprigman, in particular, had previously published this thoughtful essay on airplane seat reclining.) In summary, we had argued in our 3 October blog post — and we continue to argue — that property rights aboard commercial airlines are unclear. Some of our interlocutors, however, replied to us that the recliner should have a default right to recline since most airplane seats are reclinable in the first place. Here, for example, is one representative response to our 3 October blog post:
To me, the right appears to belong to the recliner, at least as a default. Seats recline, and people recline mostly without asking or notice. I know some people think that’s rude, but that doesn’t mean there isn’t a property right.
Nevertheless, we are not fully persuaded by this line of reasoning for two reasons. First, why can’t the “default rule” be in favor of the reclinee? After all, the reclinee is allocated a limited amount of legroom before takeoff, so he could easily argue that, at a minimum, he is entitled to that minimum amount of legroom during the entire duration of the flight. Secondly and more importantly, we would argue that just because someone has a property right to x, this does not mean that he has the right to use x in such a manner as to impose external costs on third parties. For example, I have a property right to my 1993 Jeep Wrangler, but I don’t have the right to park my Jeep on my neighbor’s driveway without my neighbor’s permission. Or to take one of Ronald Coase’s classic examples — the problem of cattle trespass — just because a rancher owns a herd of cattle doesn’t mean he is not liable to neighboring farmers when his cattle trespass on their land and destroy their crops.
In short, returning back to our airplane seat problem, what we have here are two competing and reciprocal sets of property rights: (a) the recliner’s right to recline and (b) the reclinee’s right not to be reclined upon. Until the airlines make it explicitly clear which set of property rights is to prevail — a or b — disputes between recliners and reclinees are unlikely to go away.