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Legal Fictions in Pierson v. Post

47 Pages Posted: 1 Sep 2005  

Andrea McDowell

Seton Hall Law School


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

Suggested Citation

McDowell, Andrea, Legal Fictions in Pierson v. Post. Michigan Law Review, Vol. 105, 2006. Available at SSRN:

Andrea McDowell (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8862 (Phone)

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