Teaching Pierson v. Post

Author:Luke Meier
Position::Professor of Law, Baylor Law School.
Pages:389-432
SUMMARY

How law professors should approach and change their teaching methods to incoming students in their first week of class–with an emphasis on incoming first-year Property students.

 
FREE EXCERPT
TEACHING PIERSON V. POST
LUKE MEIER*
The case of Pierson v. Post1 is “one of the old chestnuts of property
law.”2 It is usually included as one of the first cases in a first-year Property
casebook,3 which means that Pierson is often one of the first cases that
incoming law stud ents struggle with during their first w eek of law sch ool.4
This exposure, coupled with the fact that Pierson involves an accessible
(and somewhat entertaining) fact pattern, explains why many practicing
attorneys can still remember “the fox case.”5
I have now taught Pierson thirteen times. I love the case. (My former
students would confirm this statement.) After experimenting with different
ways of teaching Pierson, I have developed a unique approach that, I
believe, accomplishes many of my pedagogical objectives for the first
week of class.6 The students also seem to enjoy it.
Copyright © 2017, Luke Meier.
* Professor of Law, Baylor Law School.
1 3 Cai. R. 175 (N.Y. Sup. Ct. 1805).
2 JESSE DUKEMINIER ET AL., PROPERTY 23 (8th ed. 2014). See also Stuart Banner, 21st
Century Fox: Pierson v. Post, Then and Now, 27 LAW & HIST. REV. 1 85, 18588 (2009)
(tracing the historical significance of the case and its ascendency to its current status as an
“icon of legal education” and noting that the Pierson case “is so famous . . . that it has
become an object of study in its own right”); Bethany R. Berger, It’s Not About the Fox:
The Untold History of Pierson v. Post, 55 DUKE L.J. 1089, 1094 (2006) (describing Pierson
as a “canonical case”); James E. Krier, Facts, Information, and the Newly Discovered
Record in Pierson v. Post, 27 LAW & HIST. REV. 189, 190 (2009) (describing Pierson as an
“iconic case” of legal education).
3 See, e.g., Josh Blackman, Outfoxed: Pierson v. Post and the Natural Law, 51 AM. J.
LEGAL HIST. 417, 417 (2011) (describing Pierson as “one of the first cases” first year law
students read).
4 See A. JAMES CASNER & W. BARTON LEACH, CASES ON PROPERTY 2 (rev. temp. ed.
1948) (“For more than a half century law students have teethed upon this particular
mammal. He is to the law of property what ‘Omnis Gallia’ is to Latin; it is conceivable that
a student might start somewhere else, but it would hardly seem right.”).
5 See Charles Donahue, Jr., Papyrology and 3 Caines 175, 27 LAW & HIST. REV. 179,
180 (2009) (bemusing the fact that the story in Pierson is “the only thing that the students
remember about the property course”); Banner, supra note 2, at 1 88 (“Everyone
remember[s] the fox . . . .”).
6 As others have noted, there are multiple ways to teach the case. See, e.g., Blackm an,
supra note 3, at 460 (stating that Pierson “represents a fascinating vignette of the role
natural law played in early 19th century common law American courts”); Donahue, Jr.,
supra note 5, at 179 (“I have been teaching Pierson v. Post to first-year property students
for forty years . . . I use the ca se to introduce law students to what the litigation process is
all about . . . .”); John William Nelsen, Fiber Optic Foxes: Virtual Objects and Virtual
Worlds Through the Lens of Pierson v. Post and the Law of Capture, 14 J. TECH L. & POLY
(continued)
390 CAPITAL UNIVERSITY LAW REVIEW [45:389
This Article explains my approach to teaching Pierson v. Post. I teach
Pierson as the very first case in Property I, and spend about two-and-a-half
classes on the case. I recognize that most professors will not want to
devote this much class time to Pierson. Even for those that use Pierson
differently than I do, I hope there are ideas herein that others might find
useful.
In my first draft of this Article, I narrated and paraphrased my
approach to teaching Pierson. This proved to be somewhat clunky. What
follows below, then, is the actual presentation I use for Pierson. Notes to
the reader will be italicized and demarcated with brackets.
* * *
[Before coming to class, I print out a Pierson v. Post “ballot” for each
of my students. The ballot has eight rows, simply labelled “Vote 1, Vote 2,
etc.” There is a blank slot next to each row for the student to fill in the
name of either Post or Pierson. Upon entering the room, I distribute the
ballots to the students.
I then spend about ten to fifteen minutes covering course introduction
and logistics. Part of this introduction involves telling the students that we
will spend the first half of Property I wrestling with three fundamental
questions: (1) What is Property?; (2) How Do I Get It?; and ( 3) Why
Property? I engage the students in a brief discussion of the “What is
Property?” question by calling on them for the Dr. Seuss story “Thidwick
the Big-Hearted Moose,” which is part of their reading assignment for the
first day. I use Thidwick to introduce the idea of private decision-making
(which I call an “entitlement”). I inform them that we will continue to
revisit and develop our understanding of the “What is Property?
question, but that we will spend the next couple weeks talking about the
“How Do I Get It?” question.]
5, 67 (2009) (“[T]his Article examines whether traditional common law property rights
can extend to the virtual objects found in virtual worlds. Virtual objects are viewed through
the lens of Pierson v. Post . . . .”) (internal citations omitted); Andrea Mc Dowell, Legal
Fictions in Pierson v. Post, 105 MICH. L. REV. 735, 737 (2007) (describing Pierson as a
“rich case for class discussionit truly has endless possibilities); Peter T. Wen del, Using
Property to Teach Students How to Think Like a Lawyer”: Whetting Their Appetites and
Aptitudes, 46 ST. LOUIS U. L.J. 733, 736 (2002) (concluding that Pierson is the perfect case
for giving students a taste of what it means to ‘think like a lawyer’”); Dhammika
Dharmapala & Rohan Pitchford, An Economic Analysis of “Riding to Hounds”: Pierson v.
Post Revisited, 18 J.L. ECON. & ORG. 39, 39 (2002) (“This article undertakes an economic
analysis of the issues raised by [Pierson v. Post].”); Richard A. Epstein, Possession as the
Root of Title, 13 GA. L. REV. 1221, 1225 (1979) (“The large question [in Pierson]—why is
first possession sufficient to support a claim for ownershipreceived no consideration at
all.”).
2017] TEACHING PIERSON V. POST 391
Our first case, Pierson v. Post, addresses the “How Do I Get It?”
question. Mr. Johnson, I’m going to call on you for that case. But let me
give you a few minutes to collect your thoughts, because I want to provide
a little background on Pierson v. Post before we start our discussion.
First, you should know that Pierson v. Post is a very famous case. In
my estimation, it is the second-most famous American common law case.
This is not to say that it is the second-most famous American legal case.
There are multiple constitutional law cases decided by the Supreme Court
of the United States that are more well-known than Pierson v. Post. You
might be familiar with some of these Supreme Court cases even before
coming to law school: Brown v. Board of Education, th e Dred Scott Case,
Roe v. Wade, and Obergefell v. Hodges.
But with regard to American common law cases, I believe Pierson v.
Post is the second-most famous. What do I mean by a common law case?
You have already briefly talked about this in your introduction to law
school class, but simply put, it is the body of law that judges developed to
resolve disputes when there was no other source of law (such as a statute or
a constitutional clause) that addresses the dispute between the parties. So,
say a man swings a stick while trying to break up a dogfight at the p ark; in
doing so, he pokes another guy in the eye, causing great injury. The
injured man sues the stick swinger, seeking some so rt of monetary
compensation. There is no legislative statute or constitutional clause that
addresses this question. But the judge has to resolve the case: Is the
injured man entitled to monetary compensation from the s tick swinger?
This is what we mean by a common law case. So judges resolved these
disputes, and eventually started writing opinions explaining their
conclusions. From these opinions came rules that might be used by other
courts to resolve similar disputes in the future.
In my view, Pierson v. Post is the second most-famous common law
case decided by an American court. Now, I know what you are thinking:
This fox case that I read is famous? This dispute over a dead fox hide?
Surely not!
But it is. That this case over a dead fox hide became so famous
suggests that there is more to this dispute than initially meets the eye.
Indeed, that is the case. This case is like an onion, in that it has many
different layers.
We are going to come back later and talk about the many different
layers at which this case operates (peel the onion, if you will), and why this
dispute about a dead fox hide became so famous. But, here at the outset, I
do want you to appreciate that you are reading a very famous case. You
need to know this case, if for no other reason than this: some years down
the road you will be gainfully employed as a lawyer, and you will be at a

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