"Up for Grabs"

I conclude the acquisition by capture section of my property class with a discussion of the controversy that erupted over the ownership of Barry Bonds’ 73d home run ball back in 2001.  For those who don’t know the story, when Bonds hit the record-establishing homer into the right-field stands at PacBell Park, it ended up in the hands of a fan named Patrick Hayashi.  Soon, however, another bleacher denizen, Alex Popov, claimed that he had initially caught the ball and that Hayashi had wrested it away from him in the ensuing scrum (a contemporaneous video gave some credence to Popov’s claim).  The case was litigated in state court amid much fanfare, and the court solomonically divided ownership of the ball equally among Popov and Hayashi.  By the time the court issued its decision, though, Bonds’ star had faded enough that the ball fetched a subpar sum at auction—not even enough to cover the litigants’ attorney’s fees.

 

When we were discussing the case in class this year, a student astutely pointed out that there is a documentary about the case, called Up for Grabs.  I discovered that the film is available on Netflix, and found it both amusing and riveting.  The film has many themes (notably greed and the thoroughgoing American obsession with fame) but it’s a great law film as well (the courtroom testimony of the various witnesses to the Popov/Hayashi scuffle seem like they could have been lifted from a Christopher Guest parody). 

 

One law theme that emerges from the film that’s of particular interest to me is that the public unanimously expressed scorn for Popov and Hayashi’s decision to litigate the ball’s ownership rather than informally settling the issue.  Below, I say a bit more about what this means about public (mis)perceptions of how the law works, and the apparently strong preference that the public has for informal rather than formal resolution of property disputes.

Throughout Up for Grabs, interviewees agree that Popov and Hayashi should simply privately agree to split the value of the ball equally between them, rather than seeking to have a court award it to one of them.  Even Barry Bonds makes this point when he is asked about the dispute at a press conference.  Each litigant expresses a different reason for pursuing the suit; Hayashi seems to think his physical ownership of the ball is dispositive, while Popov has video evidence and lots of witnesses that he thinks will show he is the ball’s rightful owner.

 

But the public’s insistence that the parties should split the value of the ball puzzles me, because it seems to assume that neither party has a superior claim.  Popov is, more or less, saying that Hayashi stole the ball from him.  If that’s right, then Hayashi is no more entitled to half of the ball’s value than a pickpocket is entitled to half the cash in a wallet he thieves. 

 

Put differently, I was surprised that not a single member of the public interviewed in the film said what appears to be the most intellectually honest thing about the case:  “I don’t know all the facts, so I have no idea who should get what.”  (In fairness, perhaps there were such interviews that did not make it into the final version of the film.  I can imagine such interviews wouldn’t make very interesting cinema.)

 

This isn’t to say that public opinion about legal issues is not meaningful; it’s just that  public (or any) opinion about legal issues can’t be meaningful in the absence of a reasonable understanding of the relevant facts.  Hence I’m always baffled at polls that ask the public “Do you agree with the Supreme Court’s decision in [some case]?” when the overwhelming likelihood is that the person being asked hasn’t read the case at all.

 

The public’s distaste for Popov and Hayashi’s choice to litigate the ball’s ownership may also express a distaste for litigation generally.  It reminds me a bit of a theme emergent in one of my favorite law books, Order Without Law, when Ellickson shows that Shasta County ranchers regard resorting to lawyers and formal law as something distasteful on its own terms.  The idea, I think, is that many people think resorting to litigation is a sign of weakness because it means you have to hire someone else to do your dirty work.  The folks interviewed in Up for Grabs think Popov and Hayashi should meet and work their problems out in person, just like ranchers way up in “superior” California. 

 

And aside from the great legal themes, Up for Grabs features a full-frontal view of a distinctive feature of the modern American psyche:  the lust for fame by any means necessary.  Both of the principals seek to translate the sheer luck of being near the Bonds HR ball into not only fortune but also into Warholian fame.  Popov especially seems to be especially high on his newfound celebrity, at one point trying to impress girls in a bar by introducing himself as “the guy who caught the Bonds home run ball” (to their credit, the girls feign enthusiasm in order to mock Popov).

 

Highly recommended, for property profs, baseball fans, and just about anyone.