Private Ordering as the Foundation for Frontier Law

Abstract

Private ordering’s relationship to public law can be characterized as one of a complement, substitute, competitor, or foundation. 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 decisionmaking invoked custom, but this diminished over time. Simultaneously, the Court was puzzlingly deferential to unreliable land office decisions. 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