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The Pushy Pedagogy of Pierson v. Post and the Fading Federalism of James Kent


Angela Fernandez


University of Toronto - Faculty of Law

May 2007

2007 Stanford-Yale Junior Faculty Forum

Abstract:     
Pierson v. Post - the famous New York foxhunting case - is usually used to introduce students to the concept of possession in property law. An exotic majority opinion (with long Latin passages and references to far flung sources) by Judge Tompkins and an almost farcical dissent by Judge Livingston, combine to make the New York Supreme Court decision memorable. The Chief Justice of the court when the case was decided, James Kent, is rarely mentioned in connection with it. However, annotations he made on his copy of the case and later use of it in his own work, Kent's Commentaries, evidence a level of interest beyond the casual, making one wonder whether he played a role in the affair greater than his silence at the time would indicate. This paper argues that Kent was responsible - either directly or indirectly - for the learned way in which the case was dealt with, both by the lawyers who argued it and by the majority Judge Tompkins. It is as if Kent treated these more junior legal personnel as students, setting them to do their best on a chestnut Roman and civil law problem: how does one acquire property in wild animals? Kent would have had two motives for doing this, which this paper explores. First, to provide a pedagogical exercise for junior members of the bar and bench, whom he wanted to train to work with foreign authorities and speak in the scholarly style he thought should characterize American legal debate. Second, to create an American precedent on a classic issue that Blackstone gave no guidance on, which Kent and those interested in creating scholarly scientific law for the new nation could cite in their written work. This is a story, in other words, of Kent profiting from what is termed here his pushy pedagogy and the proprietary approach he took to the New York Supreme Court, its reports, and its personnel. As one of the fading Federalists of the early nineteenth century, Kent would have been increasingly aware that didactic influence through the courts and his scholarly work would soon be all he had left. The argument is that Pierson v. Post - a case about which many legal scholars have had much to say - is best understood in terms of his influence.

Number of Pages in PDF File: 104

Keywords: Legal History, Pierson v. Post, Property

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Date posted: August 17, 2006  

Suggested Citation

Fernandez, Angela, The Pushy Pedagogy of Pierson v. Post and the Fading Federalism of James Kent (May 2007). Available at SSRN: http://ssrn.com/abstract=984163

Contact Information

Angela Fernandez (Contact Author)
University of Toronto - Faculty of Law ( email )
78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
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