Pierson v. Post, The Hunt for the Fox: Law and Professionalization in American Legal Culture by Angela Fernandez (review)

Reading Pierson v. Post, The Hunt for the Fox is rather like being on what I imagine an actual fox hunt to be. The terrain explored by Angela Fernandez is by turns open meadow, treed upland, and soggy fens, with many twists and turns into surprising new landscapes as she pursues her quarry through law, history, geography, literature, and culture. Her quarry, of course, is not the fox itself but, rather, the famous 1805 case arising out of a fox hunt, Pierson v Post.¹ On the surface The Hunt for the Fox is an example of the 'case-in-context' genre, where the background to a particular case is explored through a variety of legal and non-legal sources. Only on the surface, though: Fernandez brings a new vitality to the genre, pushing it in multiple new directions by examining the case, its background, and its legacy through more than two centuries of contested interpretations in fields as diverse as property law theory and legal professionalization.

No review could do justice to all of the themes explored in The Hunt for the Fox. My angle on the work will be legal history, and my comments will be oriented around three themes: first, by considering The Hunt for the Fox as an example of legal archaeology; second, by looking at the case itself through the lens of dispute resolution; and, third, by examining the legacy of the case as an example of the making, unmaking, and remaking of leading cases.

The Hunt for the Fox is an example of a particular subset of legal history called legal archaeology, pioneered by Brian Simpson in the common law world, in which we take a deep dive into an individual case, going behind and far beyond the bare case report to understand more about the parties and their motivations, the lawyers and their arguments, and the judges and their decision-making process.² We want to understand why the parties persevered in their litigation, how the case came to be argued in the way that it did, and, if the case is a socalled leading case, how that status came to be bestowed on it in subsequent years.

This sentence is framed with a caveat because not all cases examined in this way are leading cases; one vein of this literature uses the techniques of legal archaeology to examine cases that did not become leading cases in order to illustrate, in a more precise and sometimes visceral way than statistics can do, how the law operated at a certain point in time, whose interests it protected or did not protect, what the barriers to access to justice were, and so on. Constance Backhouse is a highly skilled practitioner of this kind of legal archaeology, finding cases, both reported and unreported, that no one has paid much attention to before.³

While this book definitely falls into the first category, Fernandez also notes work in the second category related to the capture of wild animals, such as Bruce Ziff's work on the Newfoundland sealing cases, to which no one had paid much attention before he wrote about them.⁴ And Fernandez engages in it herself to some extent, bringing to light an interesting 1897 case on possession and fishing from the Supreme Court of Canada that cites Pierson, a decision that has never been analysed in detail, even though it is still considered the leading authority on the meaning of 'fishing' under the Canadian Fisheries Act.⁵ Frederick Gerring Jr v Canada⁶ deserves a full legal archaeology treatment on its own, and legal historians should be grateful to the author for discovering it. It deals with the seizure by Canadian government authorities of an American vessel that netted fish outside the three-mile limit but drifted inside the limit before hauling them on board. Fernandez was surprised to find a strong conservation theme...