Anti-Monopoly and the Radical Lockean Origins of Western Water Law

Abstract

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law -- the "Colorado Doctrine" -- lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lockean principles such as widespread distibution of water to current settlers and avoiding monopolization of the resource by large landowners and corporate speculators. The book explains how western water law doctrines like the abolition of riparian rights, beneficial use as the basis and measure of water rights, the sufficiency principle, the no-injury rule limiting the transferability of rights, and public ownership of water all served these Radical Lockean goals. Schorr generally downplays the significance of temporal priority, thought by many to be the hallmark of western water law, and he explains the early Colorado courts surprising and consistent favoring of small-scale farmers over large-scale corporations like ditch companies. Schorr also attempts to draw lessons from his careful and detailed history of the rise of prior appropriation law for contemporary concerns like allocating the burdens of climate-change pollution control. Although he overlooks a few matters -- like the motive underlying the rejection of riparian rights as an anti-federal government doctrine and the failure of the founders of the Colorado doctrine to grant limited terms instead of perpetual rights in water -- and his assumption that public property will inevitably be distributed to the wealthy and the well-organized might be questioned -- this book is law and history at its finest and should be read by all serious natural resources and property law teachers and scholars.