February 2007 Vol. 105 No. 4 THE REVIEW

Legal Fictions in Pierson v. Post

Andrea McDowell

American courts and citizens generally take the importance of private property for granted. Scholars have sought to explain its primacy using numerous legal doctrines, including natural law, the Lockean principle 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, makes all four of these points. This Article argues that Pierson has been misunderstood. Pierson was in fact a defective torts case that the judges shoe-horned into a property mold using legal fictions and antiquated “facts” about foxhunting. Moreover, at least one of the judges knew his arguments were farfetched. My conclusions undermine several theories about private property that are based on Pierson v. Post.

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