Paradoxes of Pierson v. Post

Were I beginning Property next week (sigh -- Seton Hall has adopted a Spring-semester Property schedule), my most interesting new challenge would be incorporating the new literature on our favorite fox case.  Two articles have already been highlighted in previous posts on PropertyProf:  Bethany Berger, It's Not About the Fox:  The  Untold History of Pierson v. Post, Duke L.J. (forthcoming 2006) and my colleague Andrea McDowell's paper, Legal Fictions in Pierson v. Post, 105 Mich. L.J. (forthcoming 2006).  A third fascinating take on the case is Angela Fernandez, James Kent and Pedagogical Theory of Pierson v. Post:  It's Really Not About a Fox.  Only Angela's abstract is currently on SSRN -- and in my view, her abstract only hints at the dramatic revelations contained in her paper.

Each article alone adds a great deal to our understanding of  Pierson, but taken together, these articles should dramatically change how we teach the case.  I urge all of you to read the articles in full, but I will also give a short version of how the articles will change my approach in the classroom.

I have historically approached Pierson as a quaint way of continuing with the first in time concept already introduced in Johnson v.  M'Intosh and then discussing forms of legal reasoning.  The facts seem amusingly straightforward (as Dukeminier & Krier et al's teaching manual tells us) and the majority and dissenting opinions use dramatically different forms of legal reasoning almost to the point of caricature.  But I -- and I think most of us -- didn't have a clue that the majority and dissent were using exaggerated styles on purpose.  I always wondered why the parties spent so much on a case about a fox, but as footnote 8 in D & K alludes, I assumed that the fathers of Pierson and Post  had some sort of personal quarrel.

With the advent of attention from three scholars, many of my questions have been answered and many more questions raised.  I will now explain to students (via Bethany's paper) that the facts of Pierson might not be as straightforward as they seem -- rather than a dispute between a sportsman and a hunter, the case may be based upon an underlying dispute between two competing communities over rights in land.  Bethany contends that at the heart of Pierson is whether descendants of the town's original settlers held special legal rights in the undivided land where the fox was caught or whether the town residents as a whole had shared rights in the land. 

I will also explain that the dissent's claim that promoting fox hunting would have the societally useful effect of promoting the destruction of noxious beasts is in fact wrong.  Andrea's paper shows that fox hunting as Livingston describes it (accompanied by imperial hounds) is not only a wildly inefficient way to kill foxes (who needs lots of elegant folks on horseback and imperial hounds to kill a little fox?), but also that fox hunters actually bred or kept foxes alive in order to provide prey for the social event that is a fox hunt.  Andrea goes on to note that Livingston's pompous tone suggests that he likely was aware of the silliness of his argument.  The irony of course is that we have all taken him so seriously. 

Finally, I would alert the students to the argument that Justice Livingston's tone may well have been a response to the inflated, highly academic style of the majority.  Indeed, Angela explains that rather than providing a typical example of formalist decision making from the early 19th century, the Pierson majority was an exercise in judicial technique inspired by Justice Kent, who used the case as a teaching vehicle for his junior colleagues and the lawyers who litigated the case.  While at first blush, the idea of a senior justice engaging in pedagogy seems innocuous, in fact, Angela argues, Justice Kent was a dominating presence on the court who used his erudition to bully his colleagues and to imprint his own view onto a new American common law.  (I thank Andrea McDowell for alerting me to Angela's paper -- and its significance)      

I am thrilled that these three scholars have breathed even more life into an already canonical case.  Have fun!

Rachel Godsil

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