Fuzzy Rules & Clear Enough Standards: The Uses and Abuses of Pierson v. Post

Pierson v Post, the famous fox case, has come to be understood by law and economics scholars as a parsed down lesson about rules versus standards, specifically the superiority of the clear capture rule over the allegedly fuzzy standard of hot pursuit articulated by Justice Livingston in his dissent. This article argues first, that the case actually does not illustrate very well the superiority of rules over standards. And second, that, even if it did, scholars who look at the case in this way are missing something very important; namely, the tongue-in-cheek style of Livingston’s dissent, which if taken completely seriously will lead one astray. The article traces the process of the serious ‘mandarization’ of the case from James Kent in the 1820s to Oliver Wendell Holmes, Jr, in the later nineteenth century. It then shows how that serious treatment continued in the twentieth century. This survey of the uses (and abuses) of the case will be of interest to those who read legal history, legal pedagogy, legal theory, and property law.