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

In her new book, Pierson v. Post, The Hunt for the Fox, Angela Fernandez uncovers the history of the famous property law case, placing the dispute between Pierson and Post against its rich local historical backdrop and the majority and dissenting opinions in their literary and intellectual contexts. The book begins with a puzzle. On first reading, Pierson v Post¹ seems fictional and absurd. It begins with two wealthy young men fighting over an economically insignificant fox on a beach in the Hamptons and a jury award of seventy-five cents, and it ends, after another two years of litigation, with a majority opinion full of references to arcane authority and a dissenting opinion expressing deep concern for chickens, referring to the fox as the enemy of mankind and one of the young men as a saucy intruder. And, yet, this case, for all of its apparent absurdity and triviality, has become a canonical case in the law of property. It has been used in law schools for over a hundred years to introduce students to the concept of possession, and the standard view today is that the majority and the dissent were engaged in a serious debate about whether one acquires property in a wild animal by capture or by pursuit.

How did this happen? Fernandez answers this question with painstaking research and attention to detail, imaginatively weaving together Pierson's literary, historical, and intellectual contexts into an argument for rethinking the case's meaning and importance. In this review, I will outline the main strands of Fernandez' argument: the literary, historical, and intellectual contexts of Pierson v. Post. Then, focusing on the literary dimensions of the argument, I will raise some questions about whether it undermines the view that Pierson is a foundational case reflecting a debate about first principles in property law.

Fernandez begins by questioning the standard view of Justice Henry Livingston's dissent as a straightforward legal text. Here, she makes a number of points. The first is that a close reading of the dissent reveals that much of it is so silly that it cannot have been seriously intended (64). Can Justice Livingston have been serious when he said that the whole dispute should have been decided by a panel of hunters? Fernandez thinks the answer is clearly no. As she points out, this was not a dispute between hunters. Lodowick Post was hunting; Jesse Pierson was on his way home from work and, annoyed by the hunt, killed the fox to spoil the fun (53). Moreover, Fernandez argues, Justice Livingston's suggestion that elaborate English-style fox hunting is the best way to eradicate foxes and save farmers' chickens is surely mistaken. The point of the foxhunt was the fun of the hunt; it required a healthy population of foxes. It was Post's elaborate fox hunting, not Pierson's spur of the moment fox killing, that threatened the farmers and their chickens (51). Finally, after declaring Barbeyrac the most rational of the ancient authorities on the subject, Justice Livingston goes on to say that, if he were at liberty to do so, he would chart a middle course between the authorities and decide the case based on the size of the dogs used for the hunt (72). Surely, this must all be a joke.

Rather than reading the dissent as a serious legal text, Fernandez argues that we should read it as a literary text (35, 77). She makes this argument by situating the dissent in a literary context, and her conception of this context is rich and diverse. Fernandez begins by drawing parallels between Justice Livingston's dissent and other instances of judicial literary playfulness or 'solemn foolery' (79). She argues for analogies between the dissent's mock seriousness and the mock trials of the Courts of Dover social clubs (94), between the dissent's break with decision-writing norms and...