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.