Pierson v. Post: A Great Debate, James Kent, and the Project of Building a Learned Law for New York State

Author: Fernandez, Angela

Source: Law & Social Inquiry, Volume 34, Number 2, Spring 2009 , pp. 301-336(36)

Publisher: Wiley-Blackwell

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Pierson v. Post (1805) has long puzzled legal teachers and scholars. This article argues that the appellate report was the product of the intellectual interests (and schooling) of the lawyers and judges involved in the case. They converted a minor dispute about a fox into a major argument in order to argue from Roman and other civil law sources on how to establish possession in wild animals, effectively crafting an opportunity to create new law for New York State. This article explores the possibility that the mastermind behind this case was the chief justice of the court at the time, James Kent. The question of Kent's involvement in 1805 remains elusive. However, the article uses annotations he made on his copy of the case and discussion of Pierson v. Post in his famous Commentaries to demonstrate the nature of his later interest and to explore the project of building a learned law for New York State.

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/j.1747-4469.2009.01148.x

Publication date: March 1, 2009

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