LEAP Hosts Angela Fernandez to Discuss Pierson v. Post

Law professor and legal historian Angela Fernandez ’02 LL.M ’07 J.S.D. returned to the Law School on September 16, 2019 to speak to students in the Animal Law class about her book, Pierson v. Post: The Hunt for the Fox, Law and Professionalization in American Legal Culture. The event was sponsored by the Law, Ethics & Animals Program (LEAP) at the Law School.

Her talk introduced students to the “legal archaeology” that took her across Long Island’s beaches, fields, and backyards in search of stories and legal documents used in her book.

Pierson v. Post, the most famous property case in American legal history, is commonly used to introduce students to the concept of possession. In 1802, New York foxhunter Nathan Post’s dogs pursued a fox, but Jesse Pierson’s party intervened and killed the fox. Post successfully sued Pierson on the grounds that the fox was rightfully his property. The New York Supreme Court ultimately reversed the decision, determining that actual corporeal possession of the fox was necessary to determine property.

Fernandez’s book retells the story, tracing how an argument between two wealthy young men on Long Island reached the Supreme Court and became a cornerstone of property law. In her talk, Fernandez discussed Pierson as a precedent for the capture rule, which established nonliability for captured natural resources. She argued that the rule encourages overconsumption by incentivizing people to take as much as they can — and that its application to natural resources has had significant environmental ramifications.

Fernandez also noted that the seemingly harmless case of the fox looks different when historically situated within the antebellum era. “I wondered, as a person coming from Canada, why is there so much slavery?” she said. “In the Hamptons, people hung on to slavery for quite a long time.” In a forthcoming feminist volume, she reinterprets the Pierson dissent to argue that the law must resist turning free entities into property at every turn.

Fernandez uses the case to confront what she calls a profound disrespect for the animal involved. As a colleague of hers once pointed out, “no matter what, they’re both going to kill the fox.” Her book seeks to highlight the link between Pierson and animal law, between animals and personhood.

Fernandez is Associate Professor at the Faculty of Law, University of Toronto, where she has taught contracts and legal history since 2004. She is also a member of the Board of Advisors for Animal Justice Canada and is a Fellow of the Oxford Centre for Animal Ethics. She is currently part of the “Animal Law Lab” at the University of Toronto Faculty of Law.

The Law, Ethics & Animals Program (LEAP) is a new initiative at Yale Law School that leads and coordinates a diverse program of activities. It seeks to contribute to defining, expanding, and advancing the field of animal law. Among recent and upcoming speakers are Justin Marceau, Jonathan Lovvorn, Jennifer Jacquet and Becca Franks.

By Hope Bigda-Peyton