Abstract

http://ssrn.com/abstract=2297548
 


 



Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy


Matthew Axtell


Program in Law and Public Affairs, Princeton University; New York University School of Law

July 23, 2013

Princeton Law and Public Affairs Working Paper No. 13-001

Abstract:     
This paper uncovers a lost world indigenous to the legal history of the United States, a place where law was "used" as an instrument not in a way familiar to readers of Willard Hurst, as a means to identify natural resources as private property to be allocated for exploitation by the highest bidder, but instead as a means to preserve landscapes as common property sustainably enjoyed by a multiplicity of actors for commercial ends. Focusing upon a single suit brought in 1854 to assign liability for a steamboat collision, where the issue became whether pilots followed the "customs of the river" at a particular bend in the Ohio River, the paper relates how through the "customs of the river" inquiry, Jacksonian judges in the 1830s and 1840s permitted a wild, unimproved river to speak at trial in order to keep American environments open to the "disorganized public" as a whole. By the 1850s, pressed by insurers seeking standardized commercial rules of the road, federal administrators promoted a more uniform, state-managed vision. To maintain the river’s status as a "common highway" with the "customs" inquiry now out of fashion, Humphrey Leavitt, the Jacksonian judge in this case, eventually developed new rules that shared the costs of navigation between private actors in a way that maintained the Ohio River as a privately-ordered common space.

Number of Pages in PDF File: 40

Keywords: legal history, law and environment, environment, property law, commercial law, Willard Hurst, Nineteenth Century America, Ohio

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Date posted: July 24, 2013 ; Last revised: September 16, 2014

Suggested Citation

Axtell, Matthew, Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy (July 23, 2013). Princeton Law and Public Affairs Working Paper No. 13-001. Available at SSRN: http://ssrn.com/abstract=2297548 or http://dx.doi.org/10.2139/ssrn.2297548

Contact Information

Matthew Axtell (Contact Author)
Program in Law and Public Affairs, Princeton University ( email )
Wallace Hall
Princeton, NJ 08544
United States
HOME PAGE: http://lapa.princeton.edu/peopledetail.php?ID=610
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
HOME PAGE: http://lapa.princeton.edu/peopledetail.php?ID=610
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