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FORUM: COMMENT
21st Century Fox: Pierson v. Post, Then and Now
STUART BANNER
| Most court opinions are like actors: the older they get, the less people pay attention to them. For instance, the case immediately after Pierson v. Post in volume 3 of Caines's Reports is called Hollingsworth v. Napier.1 It was an important case in its day, much more important than Pierson v. Post, because it involved a recurring question of commercial law: what rights, if any, did a seller retain in goods stored in a public warehouse after he had delivered a bill of sale to the buyer? Hollingsworth went on to be cited in forty court opinions distributed fairly evenly through the 1870s, but then its career was over. It was cited twice in the 1880s, once in 1892, and never again. |
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Pierson v. Post has had the opposite trajectory. In 1892, when Hollingsworth was cited for the fortieth and last time, Pierson had only six citations to its credit. By the mid-1970s, after 170 years in print, it had only three more, for a total of nine, the last of which had been in 1926. Since 1977, however, it has been cited in twenty-one more cases. It has been mentioned in more than three hundred law review articles since 1990 (poor old Hollingsworth v. Napier has appeared in only one), and the most thorough examinations of the case have all been published within the last few years.2 Angela Fernandez's perseverance has yielded a fascinating account of the trial in Pierson v. Post. With the same amount of sleuthing one could probably write a similar story of the trial in Hollingsworth v. Napier, but of course no one would want to read it. These days it's foxes that sell, not bales of cotton at the quarantine ground. |
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The publication of "The Record of Pierson v. Post" is a good occasion to think about the case's strange career. Why this burst of interest in such an old case? What did Pierson v. Post mean to contemporaries, and what does it mean today? |
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The early citations to Pierson v. Post demonstrate that nineteenth-century lawyers understood it as a case about capturing animals. How could one establish ownership of a beehive: by marking the tree with one's initials or by cutting down the hive and taking it home? (Taking it home, as in Pierson v. Post.) Who owned a deer: the hunter who wounded it or the man who came upon it the next day, six miles away? (The latter, as in Pierson v. Post.) Did a whale belong to the ship that harpooned it or the ship that caught it after it escaped the first harpoon? (The first ship, despite Pierson v. Post, because that was the custom of whalers.)3 In the nineteenth century hunting was a big part of life and the law governing hunting was mostly common law. Not many disputes over animals were litigated long enough to make it into the case reporters, but when they did, Pierson v. Post was the leading authority. |
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Pierson v. Post is still used this way, but not very often. The last time was in 1996, when the Court of Appeals for the Ninth Circuit cited it in the course of explaining that fish are owned by the person who catches them. As hunting has faded in importance, and probably more importantly as the legal world has become more statutory, courts don't have many occasions to invoke Pierson v. Post to decide who owns an animal. As one judge explained in 1999, in rejecting a litigant's claim to own the raccoon she caught, "that common law doctrine is supplanted by the Rhode Island statute that explicitly bans ownership of a wild raccoon unless DEM [the state's Department of Environmental Management] issues a license."4 In its original meaning, as a case about animals, Pierson v. Post is almost dead. |
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But it had long since acquired a second meaning. Pierson v. Post's first appearance in a Property casebook seems to have come in 1893, when William Pattee, the dean at the University of Minnesota, included it in his Illustrative Cases in Personalty. Pattee was still thinking of it as a case about animals (it appears under the heading "Animals Ferae Naturae" to illustrate what Pattee called the "acts necessary to subject wild animals to the control of man so he will possess in them a special property"). John Lawson of the University of Missouri likewise intended it to represent the principle of "Capturing wild animals" in his 1896 Select Cases in the Law of Personal Property. But Pierson v. Post would soon jump to a higher level of abstraction. In 1915, the Harvard professor Edward Warren included it as the very first case in his Property casebook, under the heading "Taking Possession of Chattels." At the University of Chicago, Harry Bigelow followed suit in 1917, including Pierson v. Post as an example of the acquisition of ownership by the "mere taking of possession."5 And of course Property casebooks for the rest of the century would do the same. Pierson v. Post was no longer just about animals. Now it was a case about the initial acquisition of previously unowned property. It was understood to have something to teach students about all kinds of property, not merely about animals. |
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This shift in meaning was doubtless caused, at least in part, by the changing self-conception of the people who taught Property courses. When such people were primarily practicing lawyers or ex-lawyers without theoretical pretensions, it was good enough to classify the cases according to the sort of property they involved. John Lawson's casebook had separate sections for cases about manure, cases about ice, cases about emblements (crops planted by tenant farmers), cases about cats, cases about dogs, and so on. But that sort of haphazard arrangement would hardly do for full-time law professors seeking to organize their subject in a more intellectually satisfying way. A casebook proceeding on first principles would need sections about how property is acquired, how it is possessed, how it is transferred, and the like, but it would not make fine distinctions between manure and ice or dogs and cats. For historical reasons, real property and personal property might still need separate treatment (although even that divide would get smaller over time), but otherwise all property would be treated the same. |
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In a casebook section on methods of acquiring property, most of the methods would involve the acquisition of property already owned by someone else. But a casebook would have to say something about how all that property was acquired in the first place. Presumably someone, at some time in the past, had become the first owner of any given asset simply by being the first to take possession of it. The trouble was that there just weren't very many cases addressing the issue, because almost everything was already owned. "In the beginning of the law of property," one 1919 treatise explained, "occupancy was the most common method of acquiring property rights, for then none of the possible objects of ownership had been appropriated, but now this is an uncommon method of acquiring property as most things are already appropriated by some one."6 The great attraction of Pierson v. Post was that it was one of the rare cases discussing the subject. The case had other virtues as well. The facts were easy to understand. There was a dissent, so the student could see both sides of the issue. The opinions were more learned and more entertaining than average. From the perspective of a Property teacher or a casebook editor, Pierson v. Post was a dream come true. |
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Generations of law students were thus taught that Pierson v. Post was the most important case about the initial acquisition of property. As they became lawyers, judges, and law professors, they used that knowledge in an enormous range of circumstances. Judges cited Pierson v. Post in cases about water, baseballs, currency, and the America's Cup yacht race.7 Law professors invoked Pierson v. Post in articles about antiquities, genetic material, trademarks, and flood insurance.8 Everyone remembered the fox, but the fox hardly mattered any more. The important thing was an abstract principle about the nature of Property with a capital P. |
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This understanding of Pierson v. Post is still going strong. But in recent years we have seen the emergence of a third meaning, and Angela Fernandez's recovery of the trial record is a good example. These days, Pierson v. Post is most important, not as a constituent of the actual working legal system, but as a rite of passage during the first year of law school. The case is so famous in that role that it has become an object of study in its own right, independent of whatever legal significance it might be thought to have. That is, even if one thinks that Pierson v. Post should not stand for any proposition about how property is initially acquired, one can still be interested in the case itself, simply because it is one of the few cases that everyone in the profession knows. |
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As an icon of legal education rather than a working precedent, the important thing about Pierson v. Post is no longer the abstract legal principle for which it might or might not stand. The important thing is the story of the fox. Thanks to Angela Fernandez, we now know much more about that story than we once did. |
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Stuart Banner is Professor of Law at UCLA School of Law <banner@law.ucla.edu>.
Notes
1. Hollingsworth v. Napier, 3 Caines 182 (1805).
2. Apart from Angela Fernandez's article in this volume, these include Angela Fernandez, "The Pushy Pedagogy of Pierson v. Post and the Fading Federalism of James Kent," http://ssrn.com/abstract=984163; Andrea McDowell, "Legal Fictions in Pierson v. Post," Michigan Law Review 105 (2007): 735–77; Bethany R. Berger, "It's Not About the Fox: The Untold History of Pierson v. Post," Duke Law Journal 55 (2006): 1089–1143; 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.
3. Gillet v. Mason, 7 Johns. 16 (1810); Buster v. Newkirk, 20 Johns. 75 (1822); Swift v. Gifford, 23 F. Cas. 558 (D. Mass. 1872).
4. Alliance Against IFQs v. Brown, 84 F.3d 343, 344 (9th Cir. 1996); Bilida v. McCleod, 41 F. Supp. 2d 142, 151 (D.R.I. 1999).
5. W. S. Pattee, Illustrative Cases in Personalty (Philadelphia: T. & J.W. Johnson & Co., 1893–94), 1:19; John D. Lawson, Select Cases in the Law of Personal Property (Columbia, Mo.: E. W. Stephens, 1896), 164; Edward H. Warren, Select Cases and Other Authorities on the Law of Property (Cambridge: Edward H. Warren, 1915), 1; Harry A. Bigelow, Personal Property (St. Paul: West Publishing Co., 1917), 1:141.
6. Library of American Law and Practice (Chicago: American Technical Society, 1919), 3:34.
7. City of San Marcos v. Texas Commission on Environmental Quality, 128 S.W.3d 264, 270 (Tex. App. 2004); Popov v. Hayashi, 2002 WL 31833731 (Cal. Super. 2002); In re Seizure of $82,000 More or Less, 119 F. Supp. 2d 1013, 1019 (W.D. Mo. 2000); Mercury Bay Boating Club Inc. v. San Diego Yacht Club, 545 N.Y.S.2d 693, 704 (App. Div. 1989).
8. Peter T. Wendel, "Protecting Newly Discovered Antiquities: Thinking Outside the 'Fee Simple' Box," Fordham Law Review 76 (2007): 1035; Radhika Rao, "Genes and Spleens: Property, Contract, or Privacy Rights in the Human Body?" Journal of Law, Medicine and Ethics 35 (2007): 376; Mark P. McKenna, "The Normative Foundations of Trademark Law," Notre Dame Law Review 82 (2007): 1875; Adam F. Scales, "A Nation of Policyholders: Governmental and Market Failure in Flood Insurance," Mississippi College Law Review 26 (2006): 37.
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