In 2014, Carol Rose (Yale/Arizona) wrote a book chapter that asserts possession, for legal purposes, means acting like an owner. Put another way, possession involves having the appearance to others that you are the legitimate owner of the property. Third party acceptance of possession is crucial, as Rose argues, because without it, possession would be ineffective. Rose writes,
Legality—or at least the appearance of legality—is the chief focal point around which social norms of property can congeal. And social norms make possession possible. However much “possession” is equated with physical control of some resource, physical control alone is ineffective—indeed often impossible—unless the so-called possessor is supported by the surrounding community. And under normal circumstances, what sways the community is the appearance of legitimacy.
Thus, Rose states the adage “possession is nine-tenths of the law” is really backwards; instead, the law is nine-tenths of possession.
Jurisprudence highlights how social norms impact possession. Grazing sheep on property for three weeks of the year may constitute possession in some jurisdictions, see Cooper v. Carter Oil Co., 316 P.2d 320 (Utah 1957), while grazing sheep twice a year, each time for a few weeks, may not constitute possession in others, see Lemon v. Madden, 340 P.2d 977 (Or. 1959). Erecting a fence usually may be a signal of possession, see Cook v. Eddy, 193 P.3d 705 (Wyo. 2008), but on occasion it may not be, see Rawls v. Parker, 602 So. 2d 1164 (Miss. 1992). Social norms matter in determining what constitutes possession.
Social norms are particularly interesting during a time like Mardi Gras when the basic social norm is “let the good times roll.”
What Mardi Gras demonstrates is that Rose is correct that social norms establish what the community accepts to be legitimate forms of possession. Nowhere is this more evident than in the use of ladders to establish possession of highly sought after parade watching locations.
Ladders are a thing at Mardi Gras, particularly along St. Charles Avenue in the Uptown and Garden District areas. There is an entire industry that builds “Mardi Gras ladders,” which are basically your standard ladder with a seat screwed into the top that small children can sit in. Yes, for those of you scratching you head right now. There is an entire industry out there that builds seats to put on the step of the ladder that reads, “Do not sit or stand on this step,” and parents sit their children on this seat.
Safety issues aside, ladders during Mardi Gras are a form of possession. On the Wednesday before Mardi Gras, people put ladders out on the neutral ground (aka the boulevard or the median) of St. Charles Avenue and leave the ladders there until Fat Tuesday. For six straight days, the ladders act as a signal to other parade goers that the spot where the ladder sits is taken. No one has to be on the ladder or in the seat on top of the ladder or anywhere near the ladder—everyone in the New Orleans area understands that the ladder signifies someone is exclusively possessing that tiny tract of neutral ground space.
If someone left a ladder out on the neutral ground any other week of the year, the ladder would be removed, be it by the city or a person passing by. But during the Carnival season, everyone respects the ladder. This limited time period every year is, to use Rose’s words, when “the [ladder] possessor is supported by the surrounding community.”
Social norms regarding possession during Mardi Gras are a fascinating case study. For more on this phenomena and how local laws are attempting to legitimize or alter current behavior, read Dave Fagundes’ (Southwestern/University of Houston) latest essay in the Tulane Law Review Online, The Tragedy of the Neutral Ground: Public Property and Social Norms During Mardi Gras.
Since it is almost Mardi Gras day as I am writing this, most social norms say I should turn off my computer for the next twenty-four hours and enjoy a slice of King Cake and an adult beverage. In the meantime, enjoy Carnival Day wherever you are and remember to laissez les bons temps rouler!