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Association: Name: The Law and Society Association URL: http://www.lawandsociety.org
Citation: URL: http://www.allacademic.com/meta/p124880_index.html Direct Link: HTML Code:

McDowell, Andrea. "Pierson v. Post and the Realities of Fox-Hunting" Paper presented at the annual meeting of the The Law and Society Association, Jul 04, 2006 <Not Available>. 2009-05-25 <http://www.allacademic.com/meta/p124880_index.html>

McDowell, A. , 2006-07-04 "Pierson v. Post and the Realities of Fox-Hunting" Paper presented at the annual meeting of the The Law and Society Association <Not Available>. 2009-05-25 from http://www.allacademic.com/meta/p124880_index.html

Publication Type: Conference Paper/Unpublished Manuscript Abstract: Pierson v. Post is one of the most famous cases of the law school curriculum as well as a favorite example in scholarship on property theory. Teachers and scholars alike, however, know little about early 19th century fox-hunting and their picture of the dispute is not the one that Livingston, who wrote the dissent, had in mind. (It is not clear whether the majority shared Livingston’s understanding of the case.) Livingston pictured the lawsuit as a contest between an English-style social foxhunt with hounds and horses, on the one hand; and a single individual, on the other. This is not the showdown between two lone hunters presented in the casebooks. Modern readers have been further misled by Livingston’s use of an outdated legal fiction. His argument that the law should favor the English-style hunters because they performed a public service was an absurd application of a 17th century legal argument, soon to be repudiated in England itself. Students and scholars who take Livingston’s opinion at its word, and add their own assumptions, come to conclusions that are simply wrong. This case was not about competition for property but about which of two competing activities - hunting for sport or destroying vermin - the law should favor. The preservation of foxes injured farmers, but the killing of foxes injured hunters. The result was a classic Coase problem, and was effectively treated as such in England. This paper suggests that the use of Pierson should be adjusted accordingly.

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