Eric Alston, ‘Private Ordering as the Foundation for Frontier Law’

ABSTRACT
Legal transitions are by definition costly, and are salient in frontier contexts where a public legal authority is imposed for the first time. Such transitions illuminate likely economic and legal outcomes as a function of the heterogeneity of resource users and substantive relationships between private and public systems of ordering. I develop these insights through a case study of judicial techniques that minimized the costs of transitioning to the public legal system in the context of case law from the Supreme Court of Colorado (hereinafter the ‘Court’) from 1868-1895. I argue that the Court played an important role in facilitating the transition from a private property rights regime to a public one. Initially, judicial faithfulness to local decisionmaking invoked custom as a source of law, but the role of custom diminished over time. Simultaneously, the Court was deferential to local land office determinations, notwithstanding documented problems with this office’s reliability and efficacy. The cases the Court treated governing mineral location claims suggest that recognition of custom and rewarding formal claimants each played a role in minimizing the costs associated with the legal transition. This case is distinguished from prior studies of the role of private ordering because of the way in which custom proved to be the foundation for the nascent legal system in Colorado when treating mineral rights.

Alston, Eric, Private Ordering as the Foundation for Frontier Law (June 5, 2019).

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