Legal Fictions in Pierson V. Post

Abstract

The importance of private property is generally assumed in American law and society. Scholars have sought to explain its primacy using numerous legal doctrines, including natural law, the Lockean principal of a right to the product of one's labor, Law & Economics theories about the incentives created by property ownership, and the importance of bright line rules. The leading case on the necessity of private property, Pierson v. Post (1805), makes all four of these points. This article argues that Pierson has been misunderstood, however. Pierson was in fact a defective torts case which the judges shoe-horned into a property mold using legal fictions and antiquated "facts" about fox hunting. Moreover, they themselves knew their arguments were frivolous. My conclusions undermine several prominent theories about private property that are based on Pierson v. Post.

Keywords: Pierson v. Post, farae naturae, fox hunting, possession, title, property, coase theorem