Going Beyond Doctrine: Critical Perspectives at BC Law

When this year’s 1Ls sit down for their first Property Law class they are likely to discuss Pierson v. Post. The case concerns a dispute over who owned a wild fox killed during a hunt. Lodowick Post and his pack of hunting dogs were in pursuit of the fox, having chased it through a stretch of the town commons when Jesse Pierson suddenly intervened to kill and claim it. Post insisted that the fox was rightly his, as he and his pack of hounds had been in pursuit and were on the verge of capturing it. Pierson countered that a wild animal is no one’s property until it is definitively captured or killed.

Pierson is a 1L classic because it dramatizes the legal construction of ownership. The dividing line between the fox’s state of nature and its state as property is whatever the majority opinion says it is. More subtly, the case also dramatizes a key assumption driving much of Anglo-American property law: settling the question of ownership clarifies many of the rights and responsibilities that shape our relations as political subjects. Pierson can feel anachronistic, with the majority discussing obscure legal treatises and the minority perseverating on the noxiousness of foxes. But the case was not really about a fox.[1]

The dispute was a proxy for a long-simmering contest over how property anchored competing models of political economy. Pierson was a “proprietor,” a descendant of the town’s colonial settlers. By virtue of English property law and colonial custom, he had inherited his own real property along with special rights to the town’s common lands, where the hunt had taken place. Post, by contrast, was the son of a successful merchant, deriving his wealth from commerce. Their very public conflict, which they took all the way to New York’s highest court, signaled the failure of the town’s attempts to reconcile traditional land tenure arrangements with a brash, mercantile zeitgeist.[2]

Enter the courts. The majority synthesized a diverse selection of European legal treatises and Roman Civil Law to advance a new rule of capture. The minority proposed a standard based on the collective wisdom and custom of contemporary hunters. Neither acknowledged the socio-legal backdrop of the case but each asserted their judicial prerogative to settle the question with a novel legal standard. Pierson’s most consequential lesson, then, one worth learning on the first day of class, is that through property law, courts hold the power to pick winners and losers when political economy is in flux.

Of course, this was nothing new. English property law began as a power struggle. King Henry instituted the “common law” in order to rein in the barons’ various manor courts and bring all his subjects under one legal regime. Numerous aspects of this law were designed to protect common people from the depredations of their landlords. When England’s barons forced King John to sign the Magna Carta, effectively limiting his power to limit their power, it had the effect of weakening feudal subjects’ protections against the landed elite.[3] As this power struggle continued over the centuries, diminishing the power and autonomy of both the monarchy and the aristocracy, the courts quietly assumed a position of greater and greater influence.

As a result, by the late 19th century, Lord Campbell cautioned the House of Lords that, “There is an estate in the realm more powerful than either your Lordship or the other House of Parliament, and that [is] the country solicitors.”[4] In her recent book, The Code of Capital, Katharina Pistor explains what Campbell meant: lawyers held the keys to the kingdom because they understood how to sustain wealth in a society transitioning from an agrarian to an industrial economy. Lawyers took the landed gentry’s sole, illiquid asset (land), and transformed it into wealth they could deploy in a new, dynamic, capitalist economy. This legal alchemy supplemented traditional (real) property law with principles from contracts, secured transactions, trusts and estates, corporations, and bankruptcy.[5]

A similarly audacious legal synthesis, according to Pistor, undergirds corporate capital to this day. Because lawyers are the only ones capable of navigating these byzantine legal pathways, they are indispensable. But they are not necessarily all-powerful, as Lord Campbell suggested. Almost one hundred years ago, as white shoe firms began to consolidate their hold on the upper echelons of the legal profession, Justice Harlan Stone warned that law risked becoming the “obsequious servant” of business and finance, tainting it “with the morals and manners of the marketplace in its most antisocial manifestations.”[6]

Today, the inter-dependence of Big Law and Big Business is beyond doubt. The question is who was correct in describing the power dynamic of that relationship. If lawyers only unleash their ingenuity at the behest of corporate clients and in pursuit of billable hours, they are, as Justice Stone warned, mere servants to the marketplace. On the other hand, if they are architects of the status quo, shaping it according to their own intellectual agency and moral compass, then they hold the power Lord Stone described.

Regardless, in our contemporary landscape of institutional distrust, spiraling inequality, and systemic racial oppression, the legal profession must confront its role in shaping this world. To that end, a new student group is forming to think critically about equity, inclusion, and critical perspectives in legal education and practice. We will come together to read and discuss scholarship that does not make it into most doctrinal courses and to advocate for the inclusion and integration of critical and marginalized perspectives in our coursework.

If you want to look beyond doctrine, if you think our legal education should train us to see the relationships between power and law, or if you would just like to learn more, please get in touch (ian.ramsey-north@bc.edu).

[1] Bethany R. Berger, It’s Not About the Fox: The Untold History of Pierson v. Post. 55 Duke L.J. 1089 (2006).

[2] Id.

[3] The “Great Charter of Freedoms” vested absolute rights only in the owners of freehold land: “No Freeman shall be taken or imprisoned or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.” Quoted in Andro Linklater, Owning the Earth: The Transforming History of Land Ownership, pp. 30-31 (2013).

[4] Quoted in Katharina Pistor, The Code of Capital, p. 158 (2019).

[5] Id. at 160.

[6] Harlan F. Stone, The Public Influence of the Bar, 48 Harv. L. Rev. 1, 7 (1934).

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