Tuesday, August 26, 2008

New Light on an Old Chestnut

Like many other law-school U.S. legal historians, I get to teach Pierson v. Post (N.Y. 1805) in a first-year property class every school year. Angela Fernandez, University of Toronto Law Faculty, has just posted an abstract for her article on the dispute, entitled The Lost Record of Pierson v. Post, the Famous Fox Case. Here is the abstract; the article may be read for a little while longer yet as a preprint from the Law and History Review's website.
Pierson v. Post, the famous fox case, has been reproduced in countless law school casebooks and written about endlessly in law review articles. A surreal air has hung around the case, in large part because scholars interested in it could access little more than what appeared in the reported appellate case at the New York Supreme Court in 1805, the rarefied "high law" in the case. Any documents setting out what happened at the lower court level were presumed lost. The judgment roll has now been found and is being made available to scholars for the first time. This article is a report on the discovery of that lost record and an introduction to the record highlighting the new information it gives us about the case. This is the "low law" we knew nothing about, specifically, the account of Post's jury trial before a Justice of the Peace, the amount of money he was awarded, and the grounds of Pierson's appeal. The new record does not answer all the questions we might have about this famous case. However, it provides much in the way of important new information that was previously unavailable to those with an interest in the case.
The only teaching tip I'd add is that Pierson v. Post goes terrifically well with Buster v. Newkirk (N.Y. 1822). Buster but not Pierson is in the first volume of John Chipman Gray's Select Cases; the legal historian Richard Helmholz and his coauthors pair the two in their rather more recently published casebook.

3 comments:

David Tanenhaus said...

Dear Dan,
Thanks for highlighting this forthcoming article, which will appear in LHR 27:1 (Spring 2009). The issue should be mailed in mid to late January. Professors Alfred Brohpy, Charles Donahue, Jr., Stuart Banner, and James Krier provide wonderful commentaries on her find.

Alfred Brophy said...

Ah, now is there going to be a whole genre of literature on Buster?

Dan Ernst said...

Actually, the case I really want to know more about is Hammonds v. Central Kentucky Natural Gas.