Outfoxed: Pierson v. Post and the Natural Law To Be Published in the American Journal of Legal History

November 2nd, 2010

I am very proud to announce that Outfoxed: Pierson v. Post and the Natural Law will be published in the American Journal of Legal History. This is article #8, not that I’m keeping count đŸ˜‰

If anyone has any feedback, please let me know. I have about 2 months before I need to submit my final manuscript. Here is the abstract:

Think back to first year property class. You are a bright-eyed 1L, and one of the first cases you read deals with hunting foxes on the beaches of Long Island, New York. The fact pattern seems obscure enough, but Pierson v. Post is the seminal case used to teach generations of law students about the acquisition of property. The interest in Pierson has recently been reinvigorated thanks to the uncovering of the original record of this case. Last year the Law and History Review dedicated an entire issue to this famous foxhunt.

The holding in Pierson v. Post has been accepted as gospel for first year law students and property scholars alike — but how did the Court arrive at that conclusion? In 1805, New York did not have any statutory or common law to govern this dispute, so the majority and dissenting opinions turned to the natural law. The Judges relied on the writings of Punfendorf, Grotius, and Barbeyrac.

An analysis of the court’s reliance on the natural law writers has been neglected in property scholarship. This article aims to fill that gap. The natural law jurists wrote at great length about how to obtain a property right to a wild animal. This article provides the first thorough digest of these writings, highlights where the jurists agree and disagree with one another, and examines how faithfully the Pierson court construed their writings. Additionally this article shows how the holding exemplifies the common law court’s desire to promote certainty, and shows the congruence between the natural law and economic efficiency. By gaining a more complete understanding of the competing arguments of these jurists, Pierson v. Post is revealed to be a much more sophisticated opinion than we all thought as 1Ls.