Angela Fernandez

FUZZY RULES AND 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.

Future(s) of American Legal History

Critical Legal History (CLH) is currently being subjected to sustained critique and re-examination by some legal historians. This review essay looks at this debate in the context of two recent books on American legal history: Christopher Tomlins’s Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (2010) and Laura Edwards’s The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (2009). In keeping with the thrust of CLH scholarship, both books problematize the connection between law and narratives of freedom and equality in American history, and both show law as a significant force for non-freedom and inequality. Yet, in a recent symposium on Robert Gordon’s classic article ‘Critical Legal Histories’ (1984), both authors chose to distance themselves from CLH. After explaining what is significant and important about each book, this review essay describes the debate in that symposium. Notwithstanding the extensive disagreement between the contributors over the use of so-called ‘mandarin’ legal materials in historical research (sources like legal treatises that reflect elite perspectives), the review essay makes the point that this disagreement is much less important than the challenge raised about the long-term tendencies and preoccupations of CLH and asks what difference it might make to take the postmodern turn advocated by these authors.

The Ancient and Honorable Court of Dover: Mock Trials, Fraternal Orders, and Solemn Foolery in Nineteenth-Century New York State

This article is about a fraternal order operating in the first half of the Nineteenth Century in New York called “The Ancient and Honorable Court of Dover.” This group organized a mock trial, probably in 1834, to prosecute one of its members. A prosecutor was appointed and the President of the group gave a long speech. At issue was whether or not non-members could participate in the trial. After a description of these records and an account of their discovery, this article explains who the individuals involved in the trial were, Jacksonian politicians and lawyers with connections to the Custom House and the Tammany Society in New York City. It then describes what a “Court of Dover” was, asks about what the offence here was, and explores the connections between this group and the most famous “Ancient and Honorable” society, the Freemasons. It argues that the records of a group like this should be understood as a kind of “legal literature” that is best understood in relationship to the notion of “solemn foolery,” a phrase that has been used in connection to the legally-themed theatricals at the Inns of Court.