Thursday, July 2, 2009

Pierson v. Post: The New Learning

Pierson v. Post, 3 Caines 175 (N.Y. 1805) is one of the most commonly assigned cases in first-year Property courses. For many years our only information about the case, other than the report itself, has been a vivid but antiquarian account published in 1895. Recent years have seen a flurry of articles that provide a great deal more insight into the case and its context.

I assign the case every year in my own Property course and, in the summer, I use it to introduce foreign-trained lawyers to the common-law method. I suspect that in due course the casebook editors will update their notes to incorporate the findings of the recent articles, but I wanted something for next year's class, with an emphasis on the issues I find most interesting in this old chestnut. Over the next few days I'll be serializing the essay "Pierson v. Post: The New Learning." I'll post a link to a complete, footnoted version, suitable for classroom assignment, at the end of the series..

The works cited include:

Berger, Bethany. 2006. “It’s Not About the Fox: The Untold History of Pierson v. Post.” Duke Law Journal 55: 1089-1144.

Donahue Charles, Jr. 1986. “Animalia Ferae Naturae: Rome, Bologna, Leyden, Oxford, and Queen's County, N.Y.” In Studies in Roman Law: In Memory of A. Arthur Schiller, ed. Roger S. Bagnall and William V. Harris. Leiden: E. J. Brill.

-----. 2009. “Papyrology and 3 Caines 175.” Law and History Review 27: 179-84.

Fernandez, Angela. 2009a. Pierson v. Post: A Great Debate, James Kent, and the Project of Building a Learned Law for New York State.” Law and Social Inquiry 34: 301-36.

-----. 2009b. “The Lost Record of Pierson v. Post, The Famous Fox Case.” Law and History Review 27 (2009): 149-78.

Hedges, Henry Parsons. 1895. “Pierson vs. Post.” Sag Harbor Express. October 24. 1.

McDowell, Andrea. 2007. “Legal Fictions in Pierson v. Post.” Michigan Law Review 105 735-78.

Finally, I want to acknowledge the excellent research assistance of Fred Turner, a JD candidate here at Georgetown who is ABD in Brandeis's history department, where he is working with Michael Willrich.

Update: See also Josh Blackman, George Mason University School of Law, "Outfoxed Pierson v. Post and the Natural Law" and Dhammika Dharmapala and Rohan Pitchford, "An Economic Analysis of "Riding to Hounds": Pierson v. Post Revisited," Journal of Law, Economics and Organization 18 (2002): 39-66.

More here.

1 comment:

Mary L. Dudziak said...

This comment is from Paul Finkelman.

Please remember that your comments are welcome, and if you have difficulties posting a comment, please visit instructions on posting a comment in the Frequently Asked Questions section on the left sidebar of the blog. For reasons I hope are understandable, I can only post comments for others under exceptional circumstances.

Here's Paul:

This is of course a great case. A quick story. In 2002 I was an expert witness in the law suit over Barry Bonds' 73rd Home Run Ball, caught by Alex Popov but after about 12 people jumped on him and his glasses were broken and he was pinned under a pile of human being the ball ended up in the hand of Patrick Hayashi. All this was caught on tape by a tv crew. Popov sued to get his ball back. I was in the process of writing on article on this issue [Paul Finkelman, Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball? 23 CARDOZO LAW REVIEW 1609-1633 (2002)] and ended up being Popov's expert witness. I argued that the ball became Popov's when he snared it in his glove and held it, and the first case I cited was Pierson v. Post. That day the Court held its session in the auditorium of Hastings Law School and when I mentioned the case you could hear the students saying things such as "wow, we did that in class." It drove home the idea that strange old cases might have merit. If you teach Pierson you might want to also teach Popov v. Hayashi or the article cited above.

Paul Finkelman
President William McKinley Distinguished Professor
Albany Law School