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. Transitions between private and public systems of ordering stand as an important example of how private ordering can be prove to be the foundation of law, in contrast with other studies that identify private ordering as either a complement, substitute, or competitor. I develop this study of private ordering as the foundation for law through examining judicial techniques of the Supreme Court of Colorado that minimized the costs of transitioning to the public legal system. I argue that the Court played a crucial 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 case law here suggests 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.