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Published online by Cambridge University Press: 18 August 2010
Unlike Professors Fernandez, Banner, and Donahue, I am not a legal historian; like them, however, I am much interested in the comings and goings of the famous old case about the fox. It figures significantly in my course on property and in my co-authored book on the subject. The background of the case is noted in the book and will be updated in the next edition to take account of Fernandez's discovery of the hitherto lost judgment roll in the case. Her find yields many facts, but, in my judgment, virtually no information. Facts are necessary to information, but not sufficient. A fact without purpose is useless; coupled with purpose, it becomes information. The information itself might be trivial, as it is in trivia games. Suppose you are playing a game, a trivia game, where stating the right fact wins you points. Suppose the name of William Blackstone's tailor was Jonas Maybird, and this is a fact you happen to know. Suppose you are asked, What was the name of William Blackstone's tailor? You answer correctly and win points. Outside the game, the name of Blackstone's tailor is just a fact; inside the game, it is information. Change the game to a scholarly one concerned with illuminating Blackstone's Commentaries on the Laws of England, and we are back to the name of Blackstone's tailor being just a worthless fact. For purposes of understanding Blackstone, I presume that to know the name of his tailor is to know a fact that carries no information; it has no purpose in the enterprise. Change the game again, to a study of famous tailors in eighteenth-century England, and then once again the Maybird-Blackstone connection is not just a fact, but a piece of information. So it all depends on the game.
1. For my treatment of Pierson and related matters, see Dukeminier, Jesse, Krier, James E., Alexander, Gregory S., and Schill, Michael H., Property, 6th ed. (New York: Aspen Publishers, 2006), 17–23, 28–35, 45–50.Google Scholar My update to take account of the record in the case will also note a few other articles discussing the background of Pierson that appeared too late to be included in the present edition, including two mentioned by Fernandez. See McDowell, Andrea, “Legal Fictions in Pierson v. Post,” Michigan Law Review 105 (2007): 735Google Scholar; Berger, Bethany, “It's Not About the Fox: The Untold History of Pierson v. Post,” Duke Law Journal 55 (2006): 1089Google Scholar.
2. Banner, Stuart, “21st Century Fox,” Law and History Review 27 (Spring 2009): 188.CrossRefGoogle Scholar
3. See Simpson, A. W. Brian, Leading Cases in the Common Law (Oxford: Clarendon Press, 1995).Google Scholar
4. Ibid., at vii.
5. Banner, , “21st Century Fox,” 188.Google Scholar
6. The works of Hobbes, Locke, and Hume appear in many editions produced by many publishers, so the most useful mode of reference is to chapters, sections, and the like, most of which are brief. See Hobbes, Thomas, Leviathan, chs. 13–18 (1651)Google Scholar; Locke, John, Two Treatises of Government, Book 2 §§ 4–6, 17–21, 27, 28, 30, and 211 (1690)Google Scholar; Hume, David, A Treatise of Human Nature, Book 3, Part 2, § 2 (1740)Google Scholar; Blackstone, William, Commentaries on the Laws of England (1765–1769), 2:3–8Google Scholar.
7. See, e.g., Hayes, Thomas C., “Confrontation in the Gulf: The Oilfield Lying Below the Iraq-Kuwait Dispute,” New York Times, Sept. 3, 1990, § 1, at 7,Google Scholar discussing the Rumaila pool, a huge oil formation beneath Iraq and Kuwait. Most of the oil underlies Iraq, but in the 1980s the bulk of it was withdrawn by Kuwait. “Kuwait's wells could eventually, in theory, bring up oil from the entire Rumaila pool.” Iraq saw this as theft.
8. Both Fernandez and Donahue suggest that Pierson might more properly have been decided according to a tort theory of interference with capture rather than the property theory developed in the case; the result then, they think, might well have been different. See Fernandez, Angela, “The Lost Record of Pierson v. Post,” Law and History Review 27 (Spring 2009): 168CrossRefGoogle Scholar, and Charles Donahue, Jr., “Papyrology and 3 Caines 175,” ibid., 181. As Donahue notes in his discussion, the majority opinion in Pierson in fact mentioned (but distinguished) the most directly relevant case on interference, namely Keeble v. Hickeringill, 11 East 574, 103 Eng. Rep. 1127 (K. B. 1707). The case is referred to in Pierson only by a citation to 11 Mod. 74–130, and 3 Salk. 9, without the names of the parties. Both of the early accounts cited in Pierson are considered unreliable.
My own opinion is that if interference had been the theory applied, still the Pierson case should have been resolved exactly as it was. (Whether it actually would have been resolved in the same manner is, of course, hardly clear.) From an instrumental point of view—where the end in mind is to have rules that promote constructive competition in the production of goods—both Pierson and Keeble reached the right result. For an explanation and defense of that view, see Krier, James E., “Capture and Counteraction: Self-Help by Environmental Zealots,” University of Richmond Law Review 30 (1997): 1039Google Scholar.
9. Rather than making fun of the majority's method, the dissenting judge might have studied the classics for himself. John Locke, for example, argued from his labor theory of property that on facts like those in Pierson, a wild animal should rightly go to the person who invested labor in pursuit, notwithstanding capture had not yet been achieved. See Locke, Two Treatises of Government, Book 2 § 30 (“the hare that anyone is hunting, is thought his who pursues her during the chase. For being a beast that is still looked upon as common, … whoever has employed so much labor about any of that kind, as to find and pursue her, has thereby removed her from the state of nature, wherein she was common, and hath begun a property”). This was exactly the result advocated in the dissenting opinion.
10. One bit dug up by Fernandez did catch my attention. The costs of the famous fox litigation, adjusted to the present, came to only some $2,260. Now that's interesting, but also depressing. Nowadays, justice comes more dear.
