A strange property rights dispute has emerged from an NBA basketball game between the Milwaukee Bucks and the Indiana Pacers. Bucks superstar Giannis Antetokounmpo set a personal and franchise record, scoring 64 points in a game. He wanted to keep the game ball as a memento. But the Pacers wanted the ball for their rookie Oscar Tshiebwe, who had scored his first NBA point.
The Pacers managed to run off with the ball, and a fracas ensued.
As far as I can tell, the NBA bylaws provide no guidance regarding mementos. So who should get the game ball?
Public figures, like a thousand King Solomons, have taken up the question. Yet the ongoing search for answers exposes the difficulties of agreeing on what justice is. The case of Bucks v. Pacers is becoming a tale of the many dangers of ill-defined property rights.
Several arguments have resonated with public commentators.
Giannis asserted that historical significance (all-time excellence) should be the deciding factor. The Pacers’ coach countered that the novelty of the experience (the celebration of firsts) should be relevant. And Marc Cuban, the owner of a different NBA team, felt that the host (Giannis’ team) had a duty to defer to its guest.
Each of these has an appeal, and for good reason. They each express a sense of justice discussed since ancient times. They are part of our cultural heritage, if not our human nature. But which of these senses to follow? Adam Smith, in the Theory of Moral Sentiments (1757), provides some valuable thoughts on the matter.
Giannis and the Pacers summoned what might be called a Platonic sense of justice, or an “estimative justice.” This justice asks us to take stock in wonderful things and therein to encourage more — from art to public behavior. The problem is that Giannis and the Pacers are esteeming different wonderful things.
Cuban summoned distributive justice. This justice asks us to find a “becoming use” of our personal resources for the betterment of society. For Cuban this means using generosity, respect, or gratitude toward a guest. But such virtues could just as well be directed towards Giannis, whose character (normally) does so much for the image of the NBA.
Both of these senses of justice can improve a society, but our case confirms Smith’s concerns. They cannot be relied upon to create a democratic consensus; they are simply too “loose, vague, and indeterminate.” They can only be ornaments on stronger social edifices. He therefore calls us to look for edifices elsewhere.
People have looked elsewhere. Several expressions of what I will call “schoolyard justice” have transpired.
During the fracas, Giannis in his rage almost certainly felt that the victor has a right to the spoils. And the Pacers, in absconding with the ball and physically defending it, felt there was truth in might-makes-right.
These are rules which have a tradition in schoolyards across the country, familiarity being their merit. But they are also the rules of pelt-clad warriors who raided lands and looted villages, and of nobles who conscripted labor and armies for personal gain.
Some journalists have done little better. They have been dismissive of the rich Giannis’ interests in a silly $200 object, or they been swayed by the Pacers’ attempt to promote Oscar’s interests by portraying him as an undrafted player from the poor Democratic Republic of Congo…who “had a dream.”
This is the archetypical stuff of social justice, good intentions being its merit. But its advocates are (as is common) claiming to know and to competently judge a person’s valuation of an object. They are claiming to know all the little circumstances which make the heart tick. This is the conceit of a bully who thinks himself a god.
Smith was particularly wary of the justice of prepubescent kids, bandits, noble brutes, and would-be gods. Much of his writing served to expose their negative effects. He writes: “All bands of [a society] are broke asunder, and the different members of which it consisted are, as it were, dissipated and scattered.”
Think Belfast during the troubles, the failed state of Somalia, and the many communities that depend on overfished oceans.
And now the NBA. Things have broken asunder.
For Smith, the justice upon which society may solidly rest is commutative justice.
Commutative justice is a primal sensation, which will “call loudest” against abuse. It is the sense of rightful ownership, of “self-evident” truths regarding “person, property, and promises-due.” These truths: to be allowed to manipulate one’s materials, instrument one’s inventiveness, configure one’s diversity, and commute oneself into this great world. To be able to “have a go.”
Of all the justices, it is the one most “precise and accurate.” As such, a society can come to a consensual “grammar” of right and wrong. People can generally recognize what is someone’s stuff and agree not to mess with it.
When commutative justice is respected, a person develops the comforts of knowing, for example, that he may buy land, make it an orchard out of it, and convey the orchard in old age without others razing those trees and setting down a house. Or vice versa.
Stability ensues and dreams get dreamt. Soil can be turned into apples, trees turned into dwellings. Through exchange, apples can be turned into houses, lumber into soil. Sometimes water into wine.
Yet, of course, people do mess. So commutative justice often needs positive expression in law. It needs formal property rights and active enforcement.
The NBA had always relied on “gentlemen’s agreements.” This ornamental solution has generally sufficed, which reflects well on its players.
With the ornament now broken, however, teams are mockingly and seriously defaulting to schoolyard justice and absconding with the ball. We have a tragedy of the commons happening nightly.
Further applications of ornamental justice cannot get us out of these messy commons. Ornamental justices have left 49 percent of the public siding with Giannis, 24 percent with the rookie, and 27 percent with Damian Lillard—yes, a third person had a noteworthy night!
What is the NBA to do? I recommend a formal rule to establish property rights. Flip a coin.
The winning team of the coin flip, if having any reasonable claim, could either take the ball or display distributive justice. The other team could purchase, barter, appeal to distributive justice, engage in what would now be defined as theft, or walk away.
Harold Demsetz, taking inspiration from Ronald Coase, had suggested this solution for contentious disputes. He took comfort in knowing that where there are few barriers to exchange, the object will eventually find its way to where it is most valued — no godly speculation needed.
There are some beautiful expressions of justices in NBA traditions. But Bucks v. Pacers reveals that formal property rights, even if established by a coin flip, are sometimes necessary to bring peace where our varied senses of justice cannot. Then, commutative justice clarified, we can again get on with the game and flourish, instead of dissipate and scatter like Bucks and Pacers.
The views expressed in this paper are those of the author and do not reflect the official policy or position of the US Air Force, the Department of Defense, or the US government.
