Teaching Pierson v. Post

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

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, 185–88 (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. & POL’Y

(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, 6–7 (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 discussion—it 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 ownership—received 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