Private Ordering as the Foundation for Frontier Law

Abstract

Legal transitions are inherently costly and salient in frontier contexts where a public legal authority is imposed for the first time. Transitions between private and public systems of ordering provide an illustrative example of private ordering as the foundation of law, in contrast with other studies that identify private ordering as either a complement, substitute, or competitor. This study of a transition from private to public ordering examines judicial techniques of the Supreme Court of Colorado that reduced transition costs. Initially, judicial faithfulness to local decision-making invoked custom, but this 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 here suggest that recognition of custom and rewarding formal claimants each played a role in minimizing legal transition costs, with mineral rights custom proving to be the foundation for the nascent legal system.

Keywords: Property Rights, Property Law, Private Ordering, Custom, Mineral Rights, Judicial Interpretation, Law and Economics

JEL Classification: H79, K11, K49, N51, N91, O13