Schorr on Western Water Rights

David Schorr (Tel Aviv) has posted The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Book Chapter) on SSRN.  Here's the abstract:

The water-law doctrine of prior appropriation is today widely misunderstood, largely due to ignorance of the social and legal context in which it arose. It has become associated with a set of values -- the preference for private over common property, the privatization of the public domain, the facilitation of markets in natural resources -- that have little to do with the ideology behind the decision or how contemporaries saw it. Analysis of the available historical evidence makes it quite clear not only that the doctrine of appropriation as developed in nineteenth-century Colorado was viewed at the time as striking a blow at private property in order to advance distributive justice, but also that it had that very effect as its central goal.

While the primary purpose of this book is to challenge the received wisdom regarding the ideology of western water law, relying primarily on an examination of contemporary sources, the significance of the argument goes beyond revision of the historical record for its own sake. Historians and theoreticians of property rights have tended to agree that the primary concern driving the rejection of riparian doctrine in favor of appropriation in the western United States was economic growth, part of that nineteenth-century “release of individual creative energy” by American law, to use Willard Hurst’s phrase or the common law’s characteristic tendency toward efficiency, as some economic analysts of the law would have it. The claims advanced in this book, stressing considerations of widespread distribution of property as the primary motivating factor in the adoption of appropriation law, challenge these consensus views regarding property law and American legal history in general. In doing so, they raise the question as to whether considerations of distributive justice have been given their due in study of these fields. Given the value American legal culture places on arguments from past practice and precedent, they also challenge current paradigms of natural-resource law.

Steve Clowney