|
|
|
FORUM. PIERSON V. POST: CAPTURING NEW FACTS ABOUT THE FOX
Introduction: A Famous Fox, a Surfacing Whale, and the Forgotten Slave
ALFRED L. BROPHY
| Discoveries in history occur in lots of different ways. Every once in a while we come across some forgotten documents—a photograph of Lincoln at Gettysburg, a trial transcript,1 other long-neglected court records,2 or a family archives.3 At other times we learn something new by just looking in old books while asking questions that we have not previously asked4 (or approaching those questions with skepticism)5 or by looking again and more deeply at published reports.6 |
1
|
|
Angela Fernandez's find is in the first category, a record long-thought lost. While this is not quite a lost Beatles recording, for law students and property professors, it may be close. The appeal record is intriguing because each year tens of thousands of first year law students read Pierson v. Post in property class. It often provides the introduction to ideas about the acquisition of property. Law and History Review is proud to present Fernandez's article on the record, as well as commentary by three leading scholars of property. |
2
|
|
Charles Donahue tells us that the record (more or less) confirms what we've already known; Stuart Banner focuses on the ways that Pierson has made its way, of late, into jurisprudence. James Krier, coming from the perspective of a property scholar rather than a legal historian, presents a bold challenge to legal history generally. Krier tells us that it really may not matter so much what the facts of the case are, for he—like many property professors who teach the case—uses it to introduce concepts of property ownership. He is concerned with the "thematic and conceptual richness of Pierson that make it such a remarkable introduction to the study of property." Krier's business is property, not legal history. In Krier's classroom, the surrounding facts do not matter so much as the theory. Krier points out a lot of lessons that can be wrung from Pierson, one of which is that judges should be cautious when importing instrumental reasoning into their decisions, especially when the numbers they plug into their calculations of utility may be incomplete or incorrect. This is also a theme that a lot of recent nineteenth-century legal history teaches us. The dangers of plugging in the wrong numbers to a utilitarian calculus are demonstrated well in the world of proslavery legal thought. Generations of jurists, politicians, and scholars ignored the interests of slaves and vastly erred in computing their society's best interest as well. |
3
|
|
Other historical scholarship seems to have those lessons of modesty in interpretation of precedent. Samuel Alito's Note in the Yale Law Journal in 1974 serves a similar function, even if he may not have had that as a purpose.7 Alito looked at the justices' notes in the released time cases (separation clause challenges to schools' giving released time to students to attend religious instruction) in the 1950s to demonstrate that the justices thought the cases should be construed more narrowly than they were being construed. Perhaps there is a key to understanding Alito in that Note, although we ought to be cautious about reading too much into the work of a student many decades before. There may also be a lesson in there for the rest of us: that we should be cautious of extending precedent. |
4
|
|
What interests me about Pierson is not so much what's going on in it, but why we choose this case to have so much "fun." I stopped teaching it years ago, when I shifted the introduction of my property course to address the question of property rights and civil rights and convey something of the ways that property exists when courts say it exists and in the amount they say it exists (as well as to critique that position). So where once foxes crossed the terrain of my class, I now start with slaves and Native Americans. And therein lies a pretty interesting story about the nature of property pedagogy. Why do some cases, like Pierson v. Post—and to a great but lesser extent Johnson v. McIntosh8—make it into the first year property curriculum, but other cases do not. I'm thinking here of Chief Justice Marshall's opinion in The Antelope,9 which is a close parallel to Johnson. It deals with similar issues of time, precedent, and international agreement in defining property rights. However, instead of dealing with real property occupied by Native Americans, The Antelope deals with property in humans. The difference has to be more than that Johnson v. McIntosh has a series of excellent secondary studies,10 for Judge Noonan published an important study of The Antelope as Johnson was being re-discovered by property professors.11Johnson seems to have entered the property curriculum first through the casebook by Charles Haar and Lance Liebman, then was popularized by Jesse Dukeminier's and James Krier's casebook.12 |
5
|
|
So the fox is a case that has captured a lot of attention. But if you have Professor Krier's focus on the rule of capture, there are the whale cases, like Heppinstone v. Mammen, which Carl Christensen is popularizing.13 Perhaps we might start with a turkey, as well. For there is Zora Neale Hurston's De Turkey and De Law, in which two men shot a turkey simultaneously, then came to blows over who owned it. The resulting fight led to a trial for assault. |
6
|
|
For generations, as students learn about Pierson v. Post, they will now turn to Fernandez's record to learn more about the context for that fox and those litigants, lawyers, and judges in orbit around it. |
7
|
|
Alfred L. Brophy is the Reef C. Ivey II Professor of Law at the University of North Carolina School of Law and an associate editor of Law and History Review <abrophy@email.unc.edu>.
Notes
1. See, e.g., Melton A. McLaurin, Celia, A Slave (New York: Avon Books, 1993).
2. See, e.g., Gautham Rao, "The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America," Law and History Review 26 (2008): 1; Ariela Gross, "'Of Portuguese Origin': Litigating Identity and Citizenship among the 'Little Races' in Nineteenth-Century America," Law and History Review 25 (2007): 467.
3. Lindsay Robertston re-wrote the story of Johnson v. McIntosh through legal and business records rediscovered in a family's trunk. Lindsay Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of their Lands (Oxford: Oxford University Press, 2005).
4. Claire Priest, "Creating an American Property Law: Alienability and Its Limits in American History," Harvard Law Review 120 (2006): 385.
5. Annette Gordon-Reed, Thomas Jefferson and Sally Hemings: An American Controversy, 224 (Charlottesville: University Press of Virginia, 1997) (discussing "the corrosive nature of the enterprise of defense").
6. Susanna L. Blumenthal, "The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law," Law and History Review 26 (2008): 99.
7. Samuel A. Alito, "The 'Released Time' Cases Revisited: A Study of Group Decisionmaking by the Supreme Court," Yale Law Journal 83 (1974): 1202.
8. 21 U.S. (8 Wheat.) 543 (1823).
9. 23 U.S. (10 Wheat.) 66 (1825).
10. See, e.g., Robertson, Conquest by Law; Robert Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990); Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge: Belknap Press of Harvard University Press, 2005).
11. John T. Noonan, The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (Berkeley: University of California Press, 1977).
12. Charles M. Haar and Lance Liebman, Property and Law (Boston: Little, Brown, 1977), 3–32; Jesse Dukeminier, James E. Krier, Gregory S. Alexander, and Michael H. Schill, Property, 6th ed. (New York: Aspen Publishers, 2006).
13. 2 Hawaii 707 (1863).
|
Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.
|