Friday, December 9, 2005

Berger on Pierson v. Post

Bethany Berger (Wayne State University Law School) has posted It's Not About the Fox: The Untold History of Pierson v. Post on SSRN.  Here's the abstract:

For generations, Pierson v. Post, the famous fox case, has introduced students to the study of property law. Two hundred years after the case was decided, this Article examines the history of the case to show both how it fits into the American ideology of property, and how the facts behind the dispute challenge that ideology. Pierson is a canonical case because it replicates a central myth of American property law, that we start with a world in which no one has rights to anything and the fundamental problem is how best to convert it to absolute individual ownership. The history behind the dispute, however, suggests that the heart of the conflict was a contest over which community would control the shared resources of the town and how those resources would be used. The historical record is far from complete, so I offer my conclusions tentatively. But this is what I believe it shows. Pierson was among the "proprietors", those who had inherited from the town's original settlers special rights in the undivided lands where the fox was caught. The fox hunt occurred in the midst of a growing dispute over whether the proprietors or the town residents as a whole had rights in these common lands. Although Post does not appear to have had proprietors' rights, his father had become wealthy in the West India trade after the war, and the family flaunted this wealth from commerce. Post's elaborate fox hunt over the commons would have been perceived as another display of conspicuous wealth, inimical to the town's agricultural traditions. The Piersons, in contrast, descended from a long line of educated gentleman farmers and town leaders, and would have followed the town's traditions of puritan thrift. Pierson and Post's conflict over the fox, I believe, was not really about the fox, but was instead part of this growing conflict over who could regulate and use the common resources of the town, and over whether agricultural traditions or commerce and wealth would define its social organization.

Ben Barros

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It certainly is the season for Pierson commentary...!

"Pierson v. Post and the Realities of Fox Hunting"

Seton Hall Law School

Document: Available from the SSRN Electronic Paper Collection:

Pierson v. Post, or "the fox case," celebrates it bicentennial this year. It is one of the most famous cases of the law school curriculum as well as a favorite example in journal articles on property theory. Teachers and scholars alike, however, know little about early 19th century fox hunting and their picture of the dispute is not the one the judges had in mind. Modern readers have been further misled by the dissent's use of legal fiction and its mischaracterization of the issues. The dissent, at least, pictured the lawsuit as a dispute between (a) a foxhunt in the English style, with many participants and their hounds and horses, and (b) a lone individual. This is credible, but quite different from the showdown between two hunters presented in the casebooks. The dissent's argument that the law should favor the English-style hunters because they performed a public service, however, was an absurd application of a 17th century legal argument, soon to be repudiated in England itself. Students and scholars who have take Livingston's opinion at its word, and added their own assumptions, come to conclusions that are simply wrong. This case was not about competition for property but about which of two competing activities - hunting for sport or destroying vermin - the law should favor. The preservation of foxes injured farmers, but the killing of foxes injured hunters. The result was a classic Coase problem, and was effectively treated as such in England, and this article suggests that the use of Pierson should be adjusted accordingly.

Posted by: Jeremy Blumenthal | Dec 9, 2005 1:21:19 PM

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