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Should We Teach Law Students the Rule Against Perpetuities?

I am in the process of finalizing my Property syllabus for the coming semester. Some traditionalists may be shocked to learn that I am strongly considering dropping the rule against perpetuities from the curriculum. For nonlawyers, I should perhaps explain that the rule against perpetuities is the traditional common law rule that sought to prevent estates from remaining in limbo for long periods of time after the previous owner's death. If you want a more detailed explanation of the rule (and even if you do, I'm betting you'll wish you didn't!), see here.

In legal circles, the RAP is virtually a byword for abstruse complexity, and is traditionally one of the most hated parts of the law school curriculum. Forcing law students to learn it is almost a form of hazing, much like making them learn the Blue Book.

But that's not why I'm considering dropping it. I think it should probably be dumped from introductory property courses because virtually every state and most foreign common law jurisdictions have essentially abolished it - either by providing for the creation of "perpetual trusts" or by enacting statutes suspending its operation for 90 years after the death of the previous owner. The RAP takes a good deal of time to read about and explain, and causes endless frustration for both students and property professors. I suspect that that time and energy can be better spent on more productive activities - much like the time we spend learning and applying the Blue Book.

But am I perhaps missing something? If you are a property scholar or practitioner and you think that learning the RAP is still a good idea in this day and age, here is your chance to tell me why. It's certainly possible that I've overlooked some benefit of this time-honored rite of law school hazing.

However, let me suggest that it is NOT enough of a justification to tell me that students should learn the RAP because it is on the bar exam or because it is good mental exercise. Yes, it is on the bar exam; but students can still pass the bar even if they don't know it, and in any event I'm not running a bar prep course. As for mental exercise, it is better to exercise the mind while learning something useful at the same time than to do so while learning something basically useless.

Finally, I should note that I am only questioning the value of learning the RAP in an introductory Property class. There is a separate and stronger case for including it in specialized classes on estate law or legal history.

Related Posts (on one page):

  1. Should We Teach the Rule Against Perpetuities? Part II - My Decision:
  2. Should We Teach Law Students the Rule Against Perpetuities?
OrinKerr:
I had Mary Ann Glendon for property at Harvard back in the 1990s, and she didn't teach it either; I learned the simple version for the bar exam and never felt I was missing anything.
8.11.2007 3:39pm
Gideon Kanner (mail):
Ask property practitioners how many times in their professional lifetimes they have had to handle a problem involving RAP. Their answers will tell you just how useless this stuff is. Still, because it or its vestiges are still out there, students should be told about it.
8.11.2007 3:47pm
HLSbertarian (mail):
My Prop prof skipped the rule and told us that if we needed it for the bar exam we could just learn it then. We were all pretty pleased.
8.11.2007 3:47pm
David Sucher (mail) (www):
I believe that RAP provides a historical connection to the origins of property law and shows how social goals have been the underpinning of property law for many many centuries. Some folks think that "property" is independent of social priorities; the RAP shows otherwise i.e. that "property" has always been somewhat of a social invention and a tool for realizing overall social goals.

Whether that's enough. I don't know. I enjoyed it (RAP) actually.
8.11.2007 3:52pm
IncomingFedLawyer:
Here goes a stream-of-consciousness post, just because I'm in a hurry:

This past year, I was the 1L property TA at a "tier 1" law school, and we definitely covered the RAP. For what it's worth, none of the Property or T&E professors at my school ever covered our state's alternative statutory rule (USRAP, the 90-year rule), but all of them covered the traditional 21-year rule. So we really learned nothing useful.

I'll say that it was very important to know for the bar - it's covered a LOT on the MBE, but other than that, it's pretty worthless. Most states, like ours, have amended/abolished it, and I don't see too many practical implications, so I'm not sure I'd cover it more than in passing.... maybe the policy arguments for/against such a rule (dead-hand control inefficient, feudal-like lines of estates bad), but I wouldn't cover it in detail, so that the students would have to try to apply it.

(Of course, the bar exam is a pretty important reason to know the rule, but as you say, professors for 1L classes certainly aren't bar reviewers, and students forget it by the time they're 3Ls anyway.)
8.11.2007 3:58pm
Kenneth Pybus (mail):
My property law professor at Baylor, Angus McSwain, saw it as something of a legal shibboleth. "It is the Rule Against Perpetuities, not the Rule Of Perpetuities," he said. "The latter is a Badge of Ignorance."
8.11.2007 4:03pm
MJG:
I'm a current 2L, and took property last year (of course). My prof taught the RAP, but also said that it would not be on the exam.

He taught it because he felt that he should follow the tradition of including it, but didn't include it on the exam because it is no longer important in practice.
8.11.2007 4:04pm
e:
My property prof went a different direction. He spent half the course on the RAP. Now I'll need to learn the relevant stuff on my own.
8.11.2007 4:15pm
UVA2L:
My property professor didn't even mention the Rule Against Perpetuities this past spring.
8.11.2007 4:16pm
Jake (Guest):
My property professor was not big on teaching the land transfer stuff (O to A for life, then to B and his heirs, but if...) generally. We covered it (including the RAP), but she made her disinterest pretty clear, and it was only 10% of the exam. I thought that approach worked pretty well.
8.11.2007 4:34pm
CJColucci:
The following story has been attributed to several legendary Property scholars and may even be true. At an alumni function, a slightly soused lawyer came up to the Eminent Property Professor who had tormented him with the Rule Against Perpetuities so long ago and said: "I've been practising trusts and estates law for 20 years and I've never seen a perpetuities problem." The Eminent Property Professor replied: "I don't doubt that."
8.11.2007 4:34pm
Tennessean (mail):
UVA2L - Was your professor DL? His property class was fantastic. I had him several moons ago, and I thought people really got a lot out of his method of teaching.
8.11.2007 4:35pm
A Northwestern Law Student:
I take it you won't be teaching the Rule in Shelley's Case, then?
8.11.2007 4:44pm
KenB:
I'm agnostic as to the answer to your question, except to note that covering it does not seem to do much good. Several times in recent years I have other lawyers raise RAP as an objection to fully vested interests. Go figure.
8.11.2007 4:48pm
Oris (mail) (www):
I think the history of the RAP can be important to understanding modern property law, but that it can be condensed quite a bit more than is traditionally done. It's also very gratifying for the first-year law student to learn that there is (or was) a law out there about which a judge ruled that, as a matter of law, it could not be malpractice to screw it up.
8.11.2007 4:51pm
Mr. Impressive (mail):
It is one thing to not teach RAP to students at Harvard and expect them to learn it on their own for the bar. But to not teach RAP to students at GMU and expect them to learn it entirely on their own for the bar is practically malpractice.

I think a commentator above has described an excellent compromise. Explain RAP conceptually to your students, but tell students you wont test them on it. This would make students feel more comfortable when they have to learn RAP for the bar, but would allow you and your students to concentrate on other property subjects.
8.11.2007 4:54pm
Dave N (mail):
I suspect that the RAP should be taught in a quick shorthand version for the bar exam--like OK suggested--whether the students be at Harvard or GMU.
8.11.2007 4:58pm
Timothy Sandefur (mail) (www):
I object. Learning and applying the Bluebook is way more useful (and interesting) than the R.A.P. (I say this as someone who's published a law review article about the R.A.P.....)
8.11.2007 4:59pm
M (mail):
In the 1L property course I took we spent, at most, about 1/2 hour on the RAP, mostly just so we would know what it was if we came across it later. We were basically told it wouldn't be on our exam, that we'd forget it anyway and would just have to re-learn it for the bar exam, learned what it was, and then went on. That seemed effective since I didn't have a hard time learning it at all for the bar exam.
8.11.2007 4:59pm
TRE:
What is next, asking pertinent and thoughtful questions of the students as opposed to asking for fact recitals?
8.11.2007 5:01pm
Mark Lyon (mail) (www):
See Lucas v Hamm 364 P.2d 685 (Cal. 1961).

There's no need to learn RAP, other than to satisfy the bar examiners. I, however, found RAP (and other issues that explain how law developed and changed over time) incredibly interesting. I still don't understand why everyone pretends that RAP is a complicated and complex rule. There are many things much more complicated than the rule.
8.11.2007 5:03pm
Litigator:
The following story has been attributed to several legendary Property scholars and may even be true. At an alumni function, a slightly soused lawyer came up to the Eminent Property Professor who had tormented him with the Rule Against Perpetuities so long ago and said: "I've been practising trusts and estates law for 20 years and I've never seen a perpetuities problem." The Eminent Property Professor replied: "I don't doubt that."

I've read it very slowly three times, and I'm ready to admit not getting the joke. The only thing I can think of is that the prof is implying that there's perpetuities problems out there, but the lawyer is missing them... which seems unlikely.

Can anybody explain?
8.11.2007 5:14pm
Alan Gunn (mail):
I went to law school in the 1960s and learned about the Rule against Perpetuities only by discussing it at a beer party with a classmate who was taking trusts and estates. He told me about the unborn widow and the fertile octogenarian, and that was it. That was plenty. There are interesting issues, though, about how the phrase should be capitalized: R a P, or r a p, or R A P. Somebody once wrote a whole article about this.

The first year of law school is full of things few if any lawyers need to know, such as the "mailbox rule," and missing a lot of things (mostly statutory) that lawyers ought to know. I once asked first-year students, late in the spring semester, what the basis of their client's claim would be if the client's employer didn't give the client benefits it had promised under a medical plan (not involving insurance). They were sure it was a state-law breach-of-contract claim. That would have been the right answer before 1974, when ERISA was passed. Later, I tried the question on some of my colleagues and most of them didn't know either. Even today, most people seem to think ERISA is some sort of tax statute, maybe because parts of it have parallels in the tax code. Heaven help anybody who actually has to hire a lawyer.
8.11.2007 5:16pm
liberty (mail) (www):
It comes across to me as more of a brain teaser, than a practical legal studies subject.
8.11.2007 5:24pm
Elliot Reed:
The Rule Against Perpetuities deserves, maybe, a fifteen-minute explanation so that students know there once was such a thing.
8.11.2007 5:29pm
Mark Field (mail):
I guess I'm in a minority of one here. I actually won a case once on the RAP. It must have been rare to cover it in law school even 25 years ago, because the contract at issue had been written 20 years before I first saw it in 1986 by a reputable NY firm, the parties had been in repeated litigation over it since then, with top quality firms on both sides, yet nobody noticed the RAP problem.

I'm sure I'll never see the issue again, but just that one case made me glad we covered it in law school.
8.11.2007 5:42pm
Craig Oren (mail):
I'm a Property teacher who still does the Rule. My state of New Jersey, it is true, has for the most part abolished the Rule. But the Rule is still effective (leaving aside some sensible reforms, such as abolition of the Unborn Widow rule) in my neighboring state of New York, the domicile of the vast majority of trusts. My neighboring state of Pennsylvania follows Wait-and-see, and a lawyer has to understand the common law rule to work with wait-and-see.

My most important reason? Students every year thank me for covering the rule. They tell me that doing so makes the bar review course go more easily.

I try to make the rule as simple as possible. Basically, you are looking for a life (a) that was in being at the time the interest was created (b) about which you can say that the interest can't vest more than 21 years after the life ends. e.g. from O to A for life, then to B when B reaches 30. B's interest is good because either B will reach 30 or B will die without reaching 30; there is no way that B's interest can vest more than 21 years after B's own death.

If anyone wants to talk to me off-list about this, my e-mail is oren@camden.rutgers.edu
8.11.2007 5:43pm
Craig Oren (mail):
p.s. may I add that the Rule is concerned with a very important theme in Property law (or in law generally): to what extent do we want the past to have control over the present, or the present have over the future. It's important to bring out that theme early so that students understand that there are actually policy questions here, although they tend to get submerged in doctrinal minutiae.
8.11.2007 5:47pm
eddy:
Please, please, don't jettison teaching about the precocious toddler and the fertile octogenarian.
8.11.2007 5:52pm
tvk:
I think there are important interests in teaching the RAP: (1) it is one of the most obvious examples of common law "legislation" and shows how the common law developed, (2) it, along with adverse possession and restraints on alienation, reflect a balancing act between absolute present control of property and the interests of later generations of not having all available resources tied up in some way. This tension between absolute present control and later generations has not gone away, see the debates on perpetual copyright, etc.

I do not know whether this justifies the amount of class time that must be devoted to RAP, but I think it is important.
8.11.2007 6:00pm
Michael A. Koenecke:
I'm with TVK, Professor. Going to law school is NOT the same thing as a bar review course. Students should learn the history and philosophy behind the law, just as they learn how common law reasoning developed. The Rule Against Perpetuities illustrates a very interesting point in the development of property law. We don't ever see a Fee Tail, either, but it's something interesting to learn about. Who cares if that precise point comes up in actual practice or not? These historical points help one *understand* property law.
8.11.2007 6:15pm
Public_Defender (mail):
The first year of law school is full of things few if any lawyers need to know, such as the "mailbox rule,"

I wish some of the appellate judges I practice in front of understood the rule. I've received show cause orders for briefs mailed before the deadline but received after the deadline. If you don't know the mailbox rule, you don't know how to calculate deadlines.

As to the RAP, Michael A. Koenecke is right, the rule informs students that preventing dead-hand control has a centuries-long history. If you want to understand why the law is what it is now, you need to understand its history. Teaching the RAP is part of the difference between a bar review class and a law school.

If you give up the RAP, maybe you crim law professors should stop teaching the Model Penal Code. I've yet to have a client charged with a MPC violation.
8.11.2007 6:27pm
Mr. Impressive (mail):
Public_Defender,

This is because you do not work in Hawaii. The criminal code there is based on the MPC.
8.11.2007 6:29pm
Houston Lawyer:
And miss the major plot point of "Body Heat"?

I don't know whether the rule has been overturned in Texas, but the trusts established in my will expressly comply.
8.11.2007 6:34pm
John Mayer (mail) (www):
See this...
Link

CALI has half a dozen lessons about RAP and a couple of podcasts as well from real live Property Law Faculty.
8.11.2007 6:47pm
Jay:
"Teaching the RAP is part of the difference between a bar review class and a law school."

What a great example of how arguments become totally divorced from reality in order to fit with someone's preconceived point. The RAP is on the bar review courses because it's on the bar exam. So by saying that whether it's taught is the difference between a bar review and law school, you're arguing that it shouldn't be taught in a law school, which was Prof. Somin's suggestion, but the opposite (I think) of what you were trying to argue.
8.11.2007 6:51pm
WWJRD (mail):
Drop the RAP.

More Tarot Card games :)
8.11.2007 7:10pm
MarkW (mail):
You're all missing a very important point. If no one learns the RAP, in another generation who will be able to explain the plot twist in Body Heat involving a violation of the RAP. :)
8.11.2007 7:35pm
Porkchop:
Litigator wrote:


The following story has been attributed to several legendary Property scholars and may even be true. At an alumni function, a slightly soused lawyer came up to the Eminent Property Professor who had tormented him with the Rule Against Perpetuities so long ago and said: "I've been practising trusts and estates law for 20 years and I've never seen a perpetuities problem." The Eminent Property Professor replied: "I don't doubt that."

I've read it very slowly three times, and I'm ready to admit not getting the joke. The only thing I can think of is that the prof is implying that there's perpetuities problems out there, but the lawyer is missing them... which seems unlikely.

Can anybody explain?


Litigator, as I recall the limiting period in the RAP is "a life in being plus twenty-one years." The professor implied that the lawyer had not been in practice long enough to see one, as well as that the lawyer was not bright enough to see the ones he had caused by his uninformed drafting, but that had not yet come to fruition.

Not a real knee-slapper . . .
8.11.2007 7:40pm
Zathras (mail):
At Texas 1st year Property came in 2 flavors: one flavor at least a month spent on future interests, including the RAP, and spent quite a bit of time on other strongly textual issues (e.g. recording statutes); the second flavor (the one I had) had virtually no time for future interests and spent most of the time arguing policy issues vis-a-vis nuisance, takings, and zoning. I certainly think the second makes more sense than the first, although some hybrid would be ideal.
8.11.2007 7:48pm
neurodoc:
Please, please, don't jettison teaching about the precocious toddler and the fertile octogenarian.[eddy]

Not only fertile octogenarians, but also fertile nonagenarians! According to the Bible, Sarah was 90 when she gave birth to Isaac. Forget that and you might fail the bar. I expect they don't leave out the RAP in their Property courses at Regent or Liberty.

More seriously, I tend to agree with David Sucher above about the incidental benefits of teaching the RAP. And really, how much time does it take to cover it?
8.11.2007 7:49pm
AB (mail):
It's on the bar...so maybe???
8.11.2007 7:51pm
Andy Treese:
Don't teach it. 1Ls won't remember the RAP two years later (unless they take other property related classes, I suppose) so they'll only have to learn it again during Bar/Bri anyway. The bar review courses teach that they expect 1 or 2 RAP questions out of 200 on the MBE each year so unless it's part of an essay, it's not an effective use of time. Spend the time on mortgages instead - practical and more important on the bar.

Of course, there's always the theory that a professor has to find SOME way to create a curve - I suppose testing on an obscure rule is one way to let the gunners shine...
8.11.2007 8:05pm
Ella (www):
I don't think I learned it in Property, but I did in Estates and Trusts. I kind of liked it, but then I like history and do logic problems for fun, so maybe I'm not the best example. It's pretty easy to relearn in bar review. Maybe just mention that it exists and why, refer them to the CALI exercises if they're interested, then move on.

The bigger question is why the MBE has such a disproportionate number of questions on an issue (issues, if you count a lot of future interests) that so few property/estate law practitioners encounter on a regular basis.
8.11.2007 8:13pm
Mr. Impressive (mail):
Ella,

Here is a better question. Why the hell does the bar exam exist in the first place? I would not consider it a particularly useful test. Can you say artificial barrier to entry?

I think we should have a bar exam. But the one we have doesn't strike me as particularly useful. Memorize a bunch of law that you are bound to forget shortly after the exam. This proves you can be a lawyer. Okay. Whatever. The system is good for BarBri at least.
8.11.2007 8:26pm
HSKQ:
My property professor's stated goal was to teach us the RAP just enough so that we could call a RAP if we thought we saw a problem with it. More generally, interests in land didn't make much sense to me until I read about the development of English property law in the 11th through 13th centures, which was long after I took Property.

Even if we're going to keep Property as a 1L course, there are far more interesting and useful subjects to teach, like zoning and takings.
8.11.2007 9:04pm
Fub:
Definitely teach RAP. As others have pointed out, it's useful for understanding the evolution of future interests.

I recall it on the MBE. I also recall some professor saying that the State Bar of California wouldn't act on any complaint that a lawyer had screwed up drafting and violated RAP. But I have no idea whether that's true or not. Never was my line of work.
8.11.2007 9:09pm
The General:
most of what's taught in law school will never been used by lawyers in their careers due to specialization. That being said, I always thought the point of law school was to teach students "how to think." Sure, that's a cliche, but teaching the RAP is part of teaching how to think, as well as legal history, so it should stay in the curriculum. Then again, if you ditch it, the students probably won't miss much.
8.11.2007 9:24pm
skyywise (mail):
Don't teach the RAP, as a 1L last year it felt useless the moment my professor started talking about it and nothing was said over the following 3 days of that topic to change my mind. It may be a good mental exercise, but there must be better things, useful things, to learn instead of the RAP. Mention its historical context, its policy rationale, and then leave it to the Bar Prep courses. I was more than irritated that 10% of my final was based on the RAP when it has such limited application.
8.11.2007 9:56pm
neurodoc:
I guess I'm in a minority of one here. I actually won a case once on the RAP. It must have been rare to cover it in law school even 25 years ago, because the contract at issue had been written 20 years before I first saw it in 1986 by a reputable NY firm, the parties had been in repeated litigation over it since then, with top quality firms on both sides, yet nobody noticed the RAP problem.

I'm sure I'll never see the issue again, but just that one case made me glad we covered it in law school. [Mark Field]
There are those bumper stickers that say something like, "If you can read this, thank your teacher." So did you let your Property Law (or Wills and Estates?) prof know how well their teaching had served you out in the real world after law school?

Those who overlooked the RAP issue before you finally spotted it and used it to your client's advantage probably were taught it in law school, since I imagine that farther back in time it would have been tantamount to heresy to leave it out of the curriculum. More likely that the others overlooked it just because it so infrequently comes up and there were no prompts, as there almost always are when one is being tested on the law, and thus looking for issues in the way that a kid is when looking for "hidden figures" in a picture puzzle.

I think you are entitled to be self-congratulatory for seeing it when everyone else had gone by it. Did a lot turn on it in that case? Did jaws drop when you called it? Was there a fertile octogenarian lurking in the background?
8.11.2007 9:58pm
Poole:
My property professor taught RAP using Anna Nicole Smith as an example. He loved talking about ANS - a name that the female law students hated hearing mentioned in class.
8.11.2007 10:01pm
Mike BUSL07 (mail):
Poole, did you happen to have Frances Miller at BU?
8.11.2007 10:11pm
Mike BUSL07 (mail):
Oops, you said "he," never mind. (Sorry)
8.11.2007 10:11pm
Wallace:
Also worth dropping:

Pierson v. Post

the "Iron holds the whale" case.

Actually, any case with animals. And spend a week giving law students some landlord-tenant law so that they have a decent chance of recovering their security deposits.
8.11.2007 10:13pm
Amanda:
Actually, I enjoyed the animal cases. But I'm also quite grateful that my property prof taught us RAP in the shortest day possible, and did find time in the syllabus for two weeks of copyright and patent law. And I pitied the poor fools in the other section with the traditional-style property prof.
8.11.2007 10:27pm
William Baude (mail) (www):
You know, like Ella, I thought the Rule Against Perpetuities was really fun. I don't know that that's a sufficient reason to teach something in a law school course, but I'm sort of puzzled by the overwhelming sense that it's a drag.

Then again, I was a math major, so I may be an oddball.
8.11.2007 10:31pm
NickM (mail) (www):
The professor I took Property from has already chimed in on this thread, and I agree with his POV.

The RAP is one of the few areas in the common 1L curriculum where students are taught to "think like a lawyer" on a matter that actually has right and wrong answers. It also helps introduce students to the development of property law and principles of ownership, with policy arguments for a variety of different changes (as opposed to areas such as the fee tail, which were just folded into fee simple ownership when they were determined to no longer be good policy).

Nick
8.11.2007 10:40pm
jim:
Never been to law school, so I have to ask, what am I missing that makes this so complicated? Or boring for that matter? I found the linked summary to be both interesting and clear, and it seems like teaching it would be about as complicated as assigning one reading.
8.11.2007 10:44pm
A Northwestern Law Student:

The following story has been attributed to several legendary Property scholars and may even be true. At an alumni function, a slightly soused lawyer came up to the Eminent Property Professor who had tormented him with the Rule Against Perpetuities so long ago and said: "I've been practising trusts and estates law for 20 years and I've never seen a perpetuities problem." The Eminent Property Professor replied: "I don't doubt that."

I've read it very slowly three times, and I'm ready to admit not getting the joke. The only thing I can think of is that the prof is implying that there's perpetuities problems out there, but the lawyer is missing them... which seems unlikely.

Can anybody explain?

No, I'm pretty sure the story here is one of irony: the professor tormented his student with the RAP in school, and many years later the student grows up to find that even his professor is willing to admit that the rule has practically no actual relevance. It's like pulling away the curtain before the Wizard of Oz.
8.11.2007 10:53pm
A.C.:
The Rule Against Perpetuities isn't that hard. And it's absolutely fascinating to anyone who reads Jane Austen novels and understands the godawful messes that people used to create in their wills.

I think it should be taught, but not beaten to death. Explain the problem, explain the solution that evolved first, and then explain all the other solutions to the same problem that have been devised over time.

People who can't add 21 to something don't belong in law school. But I sense that the real problem is figuring out when the interest might theoretically vest, not doing the basic math. That makes it an interesting subject.
8.11.2007 10:54pm
Ak Mike (mail):
Isn't the RAP just the tip of the iceberg? How often have any of the lawyers reading this run into shifting or springing interests, possibilities of reverter, reversions, or even a simple remainder? A shadow has been cast over my career by the fact that I have never been able to draft a deed of Blackacre "To A so long as it is used for church purposes" or "To B and the heirs of his body."

Maybe it should all leave the curriculum and be replaced by CERCLA.
8.11.2007 10:59pm
Jaynie59 (mail):
I am not trying to be facetious or a smart aleck. But I read all the comments on this post just to see if anyone mentioned the movie Body Heat. As soon as I read the post that was the first thing I though of, and I haven't seen that movie in about 15 years.

Not only do I not have a law degree, I didn't go to college at all. But I remembered Body Heat. So did a couple of others who have already commented.

If Body Heat does explain the rule, it would be an interesting and entertaining way to teach it. Even if it doesn't, it's a great movie, and could be used to explain what the rule isn't. Maybe?
8.11.2007 11:09pm
George Lyon (mail):
I think I understand the rule, having never written a trust, and its been 30 years since first year. Then again, my civil pro professor spent a month on the common law causes of action, and I doubt I could explain trover at this point. A grounding in the history of the law I think is important to understand how we are where we are. And yes, it did make Body Heat more enjoyable.
8.11.2007 11:09pm
Jerry F:
I have always been strongly against the Rule against Perpetuities. In a free society, if you are wealthy and successful and want to create something longlasting, you should be able to dictate how your money would be used forever in the future. Before going to law school, I don't think that I even had any idea that this was not possible.
8.11.2007 11:17pm
Ak Mike (mail):
Jerry - it would not be a good idea to allow a dead person to control assets forever. To see why, read When the Sleeper Wakes by H.G. Wells.
8.11.2007 11:59pm
Mark Field (mail):

So did you let your Property Law (or Wills and Estates?) prof know how well their teaching had served you out in the real world after law school?


I didn't, but I really should have. He was a great guy and I loved his class (and to confess to true nerddom, I especially loved the 6 weeks we spent on common law estates in land).


Did a lot turn on it in that case? Did jaws drop when you called it?


It was worth $1,000,000 to my clients, believe it or not. The other side went nuts.

I still remember how it came up. I was sitting in the office of another attorney just talking out loud about the case and the contract in dispute. I started describing how there was a right of first refusal in A, which then went to B and then to C, and then I said, "and it just keeps going on like that forever". At which point a light bulb went on. Doh!
8.12.2007 12:08am
Annonymous Coward (mail):
I'd mention the issue in historical context and I'd fault a text that failed to mention the rule in historical context. I don't know a better tie to history and legal development. I'd not test on the Louisiana Purchase either but I'd think a course or text no fun that completely omitted that famous story

The more important aspect to me is thinking in a classroom setting about the issue of control by dead hands.

Then again the House of Lords isn't what it was and dating English law by ruler doesn't come naturally to most students so perhaps this falls into the bunk part of history.


she made her disinterest pretty clear


I'd mostly approve of a disinterested, as opposed to an uninterested, teacher in the classroom. I'm not sure a 1L course should be overtaken by whatever currently fascinates the teacher as so many graduate school courses are - the material of the teacher's next publication can be fascinating but overpowering. I think water law will dominate property issues in this century but I'm not sure where it belongs in 1L property.
8.12.2007 12:14am
A Northwestern Law Student:

In a free society, if you are wealthy and successful and want to create something longlasting, you should be able to dictate how your money would be used forever in the future.

I suppose controlling the disposition of a sum of money for ever is not so objectionable. But we are talking about land. Keep in find that "forever in the future" does not mean one or two centuries, it means six centuries, ten centuries, and onward. I have no doubt that if the Rule Against Perpetuties and the abolition of the fee tail had not been established in England, the country would be all but uninhabitable today -- or would have required a revolution to sort things out.
8.12.2007 12:15am
David Sucher (mail) (www):
Jerry F.,
Well it actually is possible.

So far as I understand - and law school was many years ago -- the issue is only about 'vesting' -- when the property actually belongs to someone for sure.

You can, for example, in compliance with RAP give your estate to a park department or NGO for use only as a park with a reversionary clause which would allow your heirs 200 years from now to reclaim the property if the use were changed. The issue is that the property must finally and certainly devolve on some specific body within the term of the RAP.

So you are indeed "able to dictate how your property would be used for as far we can imagine so long as the responsibility to manage the property fell to someone with RAP.

I think that there are two separate issues here.

Do I get that right, prop law experts?
8.12.2007 1:02am
Lev:

very state and most foreign common law jurisdictions have essentially abolished it - either by providing for the creation of "perpetual trusts" or by enacting statutes suspending its operation for 90 years after the death of the previous owner.


Of course, if you don't know that you have created a perpetuity, then you won't know the effect of the clause in which you did create it on the legal matter you created it in, nor the result you will have achieved.

Bar review courses deal with it well enough. Its part in intro property would be as part of the history of Norman-English property law development.
8.12.2007 1:08am
Brian Macker (mail) (www):
"I believe that RAP provides a historical connection to the origins of property law and shows how social goals have been the underpinning of property law for many many centuries."

Oh, so it's useful in, what, giving a socialist spin to the study of justice? Why not go back further and show how property law was originally unpinned by say "Divine Rights". I'm sure if you go back far enough most every law had less than modern understanding of why the law was justified.

Strong property rights (without intrusive government meddling) are in themselves important to a thriving society. That's done without a need to reference "social goals", a euphemism for an excuse to violate individual rights.
8.12.2007 1:09am
Lucid Nebula (mail) (www):
Normally I agree much with Professor Somin's post, but this time I can't. The rule against perpetuity, from what I read from the link (I'm not a lawyer or law student), it seems to be a safeguard against the existence of excessive unearned properties and make those properties not stale. correct me if I am wrong, Thanks.
8.12.2007 1:09am
jgshapiro (mail):
I think the professor has it exactly backwards. Law school is where you learn history and policy reasons for the law as it has developed, not what the law says now. In contrast, the bar is where you demonstrate that you have some idea of what the law says now.

As several posters have mentioned, RAP is important to the former, but at this point, mostly irrelevant to the latter. Thus it should be taught in law school, but it should be omitted from the bar exam -- and accordingly, from bar prep courses.
8.12.2007 1:11am
Jay Reding (www):
My Property class covered the RAP (at some length), but it ended up not being on the final exam.

I'm actually for the RAP in this case. (And not just because I spend a solid day trying to figure it out.) Pedagogically, I think it makes sense for a few reasons: (1) dead-hand control is a key issue in Property, and the RAP gives an opportunity to bring up those issues in the context of legal history; (2) it makes students read conveyances *very* carefully and develops issue-spotting skills and (3) it may be an uncommon logic puzzle, but there are plenty of those in the law and it's good to develop those skills early on.

The RAP is perhaps not a commonly-used legal rule, but it's the sort of rule that can be useful for developing other legal reasoning skills.
8.12.2007 1:21am
Lev:

You can, for example, in compliance with RAP give your estate to a park department or NGO for use only as a park with a reversionary clause which would allow your heirs 200 years from now to reclaim the property if the use were changed. The issue is that the property must finally and certainly devolve on some specific body within the term of the RAP.



I could be mistaken, but I believe that reversionary interest is vested, therefore it is not subject to the Rule.
8.12.2007 1:21am
David Sucher (mail) (www):
Brian Macker.
I wouldn't be so quick to assume that appreciation for the social policy reasons behind the RAP makes one a socialist. That's funny, actually.
One can be a firm believer in private property while also recognizing the necessity (as implied by the RAP) of using &transferring property so that it also benefits society. At least many can do so.
8.12.2007 1:39am
theobromophile (www):
Another law student for teaching the rule against perpetuities. Our professor presented it in a way that made a lot of sense, but we only spent a class on it. He stated that most jurisdictions no longer recognise it and have the 90-year "wait and see" rule, but the RAP actually seems to be pretty straightforward.

More than that, I do think that it's good for law students to recognise the consequences of what they write, be it a will, a trust, or a non-disclosure agreement. Everything needs an ending date (whether it be a definite time when something vests, or a time when you can throw out the proprietary material), and a drafter ought to be pretty freakin clear about who is covered by the will, trust, or NDA in question. While the Rule was designed to prevent people from controlling their assets long after their death, it is a really good tool to show students how to write good documents.

Amanda,
Actually, I enjoyed the animal cases. But I'm also quite grateful that my property prof taught us RAP in the shortest day possible, and did find time in the syllabus for two weeks of copyright and patent law. And I pitied the poor fools in the other section with the traditional-style property prof.

Which book did you use?
8.12.2007 1:45am
tmittz:
I'm pretty anti-RAP. We spend a good amount of time on it in class, and it was definitely a big factor in the MC portion of my exam. Still, it took a really disproportionate amount of time in studying - something that really bothered me in light of comments my professor made to the tune of "there are books on the RAP that are 100's of pages long".

The real kicker was going to a bar prep sales session where the speaker told us this: "We focus on the important things. Sure, you may find a question or two about the RAP, but really, just do life+21 and you've got a good shot. Who cares about the weird cases? The time you don't spend slaving away learning the nuances is time you'll spend learning more things that are tested far more in depth."
8.12.2007 4:20am
Anon. E. Mouse (mail):
Mr. Impressive wrote:
It is one thing to not teach RAP to students at Harvard and expect them to learn it on their own for the bar. But to not teach RAP to students at GMU and expect them to learn it entirely on their own for the bar is practically malpractice.

Elitist twit.
8.12.2007 7:10am
steve (mail):
Maybe just show the movie Body Heat instead?
8.12.2007 8:11am
Public_Defender (mail):
Teaching older doctrines gives law students a sense of history. Conservatives should want lawyers to understand and respect the centuries-long roots of American law.
8.12.2007 8:23am
steve (mail):
Meant to add this re the problems with RAP in Body Heat:

http://www.usfca.edu/pj/articles/BodyHeat.htm.
8.12.2007 8:35am
Ella (www):
I think the following hypo illustrates why the "rights" of dead people to control the distribution of assets in perpetuity needs some limitation.

John owns Blackacre, a large estate, part of which is used to operate a profitable widget factory. He has two children, John Jr. and Linda. John Jr. manages the widget factory. John leaves Blackacre to John Jr., his heirs and assigns, "but if the widget factory ceases operations, to John Jr. and Linda as tenants in common". Linda inherits a bigger slice of the monetary pie than John. Everyone goes about their lives, has children, etc. Linda never thinks about her executory interest, never tells her five children about it, and doesn't mention it in her will. When John dies, his three children sell Blackacre to Widget, Inc., but fail to convey their executory interests in the deed.

200 years later, when John and Linda between them have a few dozen lineal descendants, widgets become obsolete. Widgets, Inc. has since constructed it's corporate headquarters at Blackacre, developped luxury condos on another portion, and, when the writing on the wall about widgets becomes clear, invests substantial funds to convert the factory to manufacture wodgets, which have replaced widgets. Two years after all widget manufacturing stops, Linda's great great great great grandson discovers the old deed while doing geneaological research.

You can imagine the legal battle that ensues as Widgets Inc. and a few dozen descendants of John Jr. and Linda, not to mention the residents of the luxury condos, battle it out for control of Blackacre. Who knows whether John really foresaw or intended such an outcome. Most likely, he just wanted to be sure that John Jr. used Blackacre for the purpose he intended when he left it to John Jr. instead of both children jointly. John probably didn't care whether someone 200 years in the future operated a widget factory or not. And even if he did, who cares? Widgets Inc. and hte condo residents invested substantial resources in the property. Why should they be cut out so the property can be divided a few dozen ways among people who probably never even heard of John, John Jr., or Linda? And why should the courts waste time with any of it?
8.12.2007 10:01am
New Yorker:
I believe that about twenty-five years ago, the optionee of the SW corner of 95th and Broadway in NYC (now the location of, among other things, the Leonard Nimoy Theater) lost its rights because the option violated the RAP and was therefore unenforceable.
8.12.2007 10:02am
PaulD:
I was going to chime in favoring continued teaching of the RAP, for practical reasons. It still is effective in some states, albeit often in some modified form, and it is the sort of rule that you can easily violate unthinkingly in drafting, even if you're familiar with it. I have seen RAP problems in practice and, perhaps more importantly, I would not understand the motivation for drafting documents that do properly account for the RAP if I did not know about it.

Then I remembered the fact that a much, much more common source of serious trust drafting error in my experience, which is section 2036 problems (basically, the IRS will treat a trust with a retained life interest as part of your estate at death for tax purposes). Failing to realize that retention of a life interest will defeat your tax plan, and failing to understand how the service goes about identifying retained life interests, will cost your client big, big money.

Do they teach this tax rule in property? No, they teach it in the estate planning courses, where it belongs - and where, arguably, the RAP belongs as well.

So, the more I think about it, the less relevant I think it is whether this rule has practical application. The days when passing the bar was sufficient to qualify someone to draft trusts for people with real money are over.

On the other hand, I do see pedagogical reasons why it is useful to teach, and I think that students should know it exists (if only so they can learn it for the bar).
8.12.2007 10:44am
San Antonio Lawyer:
Houston lawyer says:

I don't know whether the rule has been overturned in Texas
Texas Property Code Sec. 112.036 provides

:§ 112.036. RULE AGAINST PERPETUITIES. The rule against perpetuities applies to trusts other than charitable trusts. Accordingly, an interest is not good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of the interest, plus a period of gestation. Any interest in a trust may, however, be reformed or construed to the extent and as provided by Section 5.043.
8.12.2007 11:30am
David Krinsky (mail):
My two cents: I say there's no harm in dropping it. We didn't cover it in my first-year property class, and I didn't feel as though I had missed much when I learned it later. Most students will learn it for the bar (and have little trouble doing so) if they don't pick it up elsewhere.

My impression is that the RAP is one of those things that's pretty hard if you encounter it as a first-year, but is a lot easier once you're more used to legal thinking. Since nothing else in law school really depends on it and it's obscure in practice, it can wait.

It's probably worth mentioning in passing, though, since it's not totally dead in many states. My old boss actually won a case (and successfully nullified a real estate transaction his client wanted to back out of) on RAP grounds.
8.12.2007 11:38am
Rubber Goose (mail):
Ilya,

I will just chime in to say, possibly counterintuitively, that as a non-lawyer and non-academic, these are actually my favorite types of posts on VC. I've learned something interesting, and the comments are all (with the exception of one or two) civil and intelligent.

I also find interesting jgshapiro's comment "Law school is where you learn history and policy reasons for the law as it has developed, not what the law says now." Or at least I think that that question is ultimately the background for this discussion - IS law school, and by extension is college/university/graduate school in general, meant to teach why things are what they are, and give the students background so they can reason clearly for themselves (the classic "liberal arts" education), or are all of these programs merely job preparation?
8.12.2007 12:26pm
LongSufferingRaidersFan (mail):
IMHO by far the greatest failing of our educational system is the failure to teach history. It is far more than dates and battles--it is the collective experience of humanity. Expecting someone whose knowledge of history comes from our post-60's leftist/P.C. dominated curriculum to be able to make intelligent decisions about voting is like expecting someone who has been in a coma for 50 years to be able to wake up and give a lecture about the internet. This explains why so many intelligent young people are leftists--they are convinced that Che is a hero and socialism will solve all the world's problems--as though its never been tried before. The point being,we need to understand the history and development of whatever field (e.g., property law) in order to think intelligently about it, it seems to me.
8.12.2007 12:43pm
Ella (www):
While I agree with Raiders Fan's first point, I have to point out that leftists demonstrably do not have the monopoly on historical ignorance leading to idiotic positions and policy choices. I submit the entire Iraq debacle (the citizens of a conquered nation under occupation will LOVE the conqueror, forget their internal divisions, and immediately fall in line with the conqueror's imposition of democracy - SURE), the America-is-a-Christian-nation nonsense, those who believe that we can trust the executive with nearly unlimited power and discretion (that never bit us or any nation in the ass before, after all), trade protectionists (who come in left and right flavors), those opposed to all health and safety regulations (because the market did such a great job sorting those things out prior to the 20th century), and countless others who seem never to have opened a history book that wasn't penned by an ideologue.
8.12.2007 1:13pm
PaulD:
Ella:

Here's how things happen in the real world, which may help you understand perpetuities reform.

John owns one hundred percent of the shares of Widget Corp., the company he built during his lifetime. Blackacre, and the factory on it, are assets of the corporation.

In contemplation of his death, John transfers the shares to a trust as part of a complex tax strategy.

At this point, the main thing limiting the time duration of the trust is not the rule against perpetuities, it's the Generation Skipping Transfer Tax. But let's pretend that has been repealed.

John dies. The trust starts paying income to John Jr. and Linda. Years pass.

Even if the trust instrument attempts to absolve the trustee of the potential liability arising from retention of the Widgets Corp. stock, the trustee would at the very least be obligated to recommend diversification on a regular basis. A trust that limited the trustee's ability to sell and reinvest could eventually be subject to judicial modification. And, even in the unlikely even that the trust somehow locked the beneficiaries into this one investment in perpetuity, Widget Corp.'s own diversification into wodgets would not create a problem, unless you are asking us to consider a scenario where John, through the trust, tries to force the company make widgets forever.

Which is not to say, of course, that no litigation would ensue over the timing of diversification, etc. But the issue in the litigation would be the economic fundamentals of the portfolio decisions, which is probably a better way to think about the fundamental problem that the RAP was intended to address, ie. assets tied to unproductive uses.

In this real world context, the main role that the RAP has to play is to generate drafting errors that can be used to defeat a legitimate intent of the settlor.

Note that I am not saying that there may not be _social_ problems with dynasty trusts involving the accumulation of capital in the hands of certain families. Hard to say right now, though, with the GSTT standing in the way of genuine dynasty trusts.
8.12.2007 1:28pm
Ella (www):
Um, Paul, you missed my point. I was responding to some posters who think that any limitation on a person's ability to control his property after death is bad. I think this is an idiotic position and centuries of legal thinkers agree with me. My scenario was one of the scenarios the RAP was created to prevent. Your hypothetical judicial modification of overly restrictive trust conditions is also a common law solution to the same basic problem. Without such common law rules, property could be rendered economically useless for decades or centuries in the name of carrying out the wishes of a dead person who would probably rewrite the trust/deed himself if he was aware of the changed conditions.

Frankly, I don't care that much if a family accumulates wealth in a dynastic trust, as long as the trust is able to freely use, invest, and sell that wealth. But if a non-charitable trust or deed requires that property be used for a specific purpose in perpetuity, I think it is quite appropriate that the law interfere to free the property from the restraint. The common law RAP with all of its twists and turns has certainly outlived its usefulness, but that doesn't mean that the various (simpler) statutory alternatives and surviving common law rules like cy pres are no longer necessary or useful.
8.12.2007 2:00pm
LongSufferingRaidersFan (mail):
Ella:

Your point about historical ignorance of history not being a phenomenon limited to one political persuasion is well taken, but I think that leftists are for the most part responsible for the DELIBERATE and indeed even proudly acknowledged sacrificing of historical truth in favor of the new P.C. orthodoxy. The difference is, I really don't think many people outside of the "Deliverance" type have been taking the Jerry Falwells of the world as purveryors of historical truth for at least the last 100 years, whereas the leftist/communist professoriat that dominates our schools is taken as dispensing gospel by generations of future limo-liberal "leaders."
8.12.2007 2:11pm
Brian G (mail) (www):
Yes. And while you are at it, abolish teaching the rule in Shelley's case.
8.12.2007 2:21pm
Realist Liberal:
As a former Property TA, I can say that there are two legitimate reasons to teach RAP. The first is one that you have already dismissed (and I would be inclined to dismiss as well) and that is that it is on the Bar. The second is what my professor did. He taught the traditional RAP as a way of introducing us to the much more important current versions of the rule (namely USRAP, 90 year RAP and California's weird version of both). If you have time to teach all three versions then I would recommend it because if a student doesn't at least have a familiarity with the traditional rule, the current versions will make no sense. If you don't then I see no problem with dumping it entirely.
8.12.2007 3:07pm
Sean M:
A sign that you're on the Volokh Conspiracy:

That a thread on RAP has 95 comments.
8.12.2007 3:59pm
Matthew Friendly (mail):
On behalf of all former, present, and future law school students, I beseech you to please drop it from your syllabus! What a tedious and unnecessary Property subject.
8.12.2007 4:09pm
Matthew Friendly (mail):
Realist Liberal:

It doesn't matter that it's on the Bar exam. Every bar review course teaches it adequately enough for the bar exam.
8.12.2007 4:10pm
PaulD:
Ella,

We are more or less in agreement that people should not be able to restrict the manner of use of their property after their death in perpetuity. And you are correct to note that history helps us to understand why this should be so. I think there may be fewer people who disagree with you on that general proposition here than you suspect, although the devil is, of course, in the details.

My point was that your hypothetical was disconnected from contemporary economic reality in a way that has the intentional or unintentional consequence of making it look like the rule against perpetuities is more useful/necessary than it actually is, in today's world.

Sorry if this offended in the way that it was stated. I was focusing on the topic of the thread, as opposed the few people here who apparently want to bring back the fee tail.
8.12.2007 4:53pm
AndyM (mail):

:§ 112.036. RULE AGAINST PERPETUITIES. The rule against perpetuities applies to trusts other than charitable trusts. Accordingly, an interest is not good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of the interest, plus a period of gestation. Any interest in a trust may, however, be reformed or construed to the extent and as provided by Section 5.043.


This is a digression from the main point of this thread, but... The above quoted texas law seems to have a loophole in modern IVF technology. I believe it is possible to take a fertilized egg, freeze it, and later thaw it out, implant it, and have a child born from it. What does this do to the "plus a period of gestation" rule there? If you can say that the child was concieved and gestation is just on hold for a while, twenty-two years later, is there a potential problem?
8.12.2007 5:10pm
PaulD:
AndyM

Yes.
8.12.2007 5:19pm
Mike BUSL07 (mail):
Andy, I would guess that if this situation was to arise, the reviewing court would consider a natural gestation period. After all, "gestation period" is the extension to what is otherwise a requirement that the 21 years follow a "life in being." Allowing some grotesque 20 year gestation to intervene between the measuring life and the 21 year period would thwart the rule.
8.12.2007 5:25pm
Ella (www):
Paul - No offense taken. The historical and practical ignorance of people just never ceases to amaze me. Including one poster who apparently thinks that RAP was created to advance socialist goals.

RaidersFan - I don't want to hijack the thread, but suffice it to say I think your view is a little skewed. Right wingers and conservatives (hell, even moderates) worldwide have blithely manipulated history and promoted historical myths just as much as liberals and left-wingers for centuries. (If you want some whoppers, just check out some of the nonsense various nationalist movements have put out over the past two centuries). This particular race to the bottom is not one any side is going to win.
8.12.2007 5:36pm
PaulD:
Can't find a case. The following (quoted material, cite at bottom) is a legislative discussion.

Frozen Embryos and the Rule Against Perpetuities

Article IX, Part 1, § 901 of the Uniform Act on Intestacy, Wills, and Donative Transfers, covers the Statutory Rule Against Perpetuities. This Act was adopted in Michigan in 1988. See MCL. § 554.71-77, subsection (d). MCL. § 554.72(4) provides:

[Possibility of Post-death Child Disregarded.] In determining whether a non-vested property interest or a power of appointment is valid under subsection (1)(a), (2)(a), or (3)(a), the possibility that a child will be born to an individual after the individual's death is disregarded.

The commentary to that section states that when, for example, a party leaves sperm in a sperm bank and his wife, or another, uses it to become pregnant after his death, "[a]s to the legal status of conceived-after-death children, that question has not yet been resolved." The commentary goes on to note that "[w]ithout trying to predict how that question will be resolved in the future, the best way to handle the problem from the perpetuity perspective is the rule in subsection (d) requiring the possibility of post-death children to be disregarded." Although not explicitly stated, this would appear to apply to frozen surplus embryos also.

[cite]
8.12.2007 5:37pm
jim:
ditto what rubber goose said. very interesting post/comments
8.12.2007 5:39pm
Ella (www):
RE: Frozen Embryos. There was at least one (non-RAP) case in Massachusetts a few years ago. Mom and Dad planned to do IVF. Dad died. Mom went through with the IVF, using Dad's sperm (or pre-made embryos, I forget which) not once but twice within three or so years of Dad's death. Then she filed for Social Security survivor benefits for her daughters. The Social Security Administration denied benefits because it didn't believe the biological father could be considered the legal father. The paternity question was certified to the state court, which found for the children. As I recall, the issue of the father's intent was key - the court found that the father intended for his wife to be able to produce the children after his death. The court also indicated that if the mother had waited much longer, it might have made a different decision. The court essentially told the legislature that it REALLY needed to address the issue, but, as far as I know, it hasn't.

There was another case in Louisiana within the last twenty years that involved adult children, a second wife, and posthumous IVF. It dealt with inheritance, not paternity, and the second wife and the posthumously conceived child lost, but I don't remember why.
8.12.2007 5:54pm
A. Friend:
You say that learning the RAP takes a great deal of time. It certainly does -- but only if you teach it through the usual nonsense methods, such as making your students plow through a million judicial opinions applying the rule. If you dispense with all of that, you can just explain the rule in simple English in ten minutes, go through a few examples, and you can move on. Learning the Rule is not entirely without benefits, and the proces of teaching it only has to be laborious and tedious is law professors want it to be.
8.12.2007 5:54pm
San Antonio Lawyer:

Re Andy M's point about the effect of invitro fertilization on the concept of "a period of gestation" inherent in RAP.
I have not looked for any Texas cases on this point, but I doubt there are any.

My seat of the pants reaction is that, if I were a judge, I would hold things to a "natural" period of gestation. But that's just a seat of the pants reaction, and I not a judge, much less a judge with that case before him.

The situation seems likely to lead to a lawsuit.
8.12.2007 6:09pm
San Antonio Lawyer:

Re Andy M's point about the effect of invitro fertilization on the concept of "a period of gestation" inherent in RAP.
I have not looked for any Texas cases on this point, but I doubt there are any.

My seat of the pants reaction is that, if I were a judge, I would hold things to a "natural" period of gestation. But that's just a seat of the pants reaction, and I not a judge, much less a judge with that case before him.

The situation seems likely to lead to a lawsuit.
8.12.2007 6:09pm
ronbo:
Vanderbilt, late '70s. My property prof touched on future interests but basically punted the subject to the wills and trusts course. He said that there was plenty of time to learn it for the bar exam but there were more important concepts for 1st year students to focus on.

I never practiced either dirt law or estate planning, so I can't comment on the practical utility of the rule. I can say, however, that it was a PITA to learn for the bar exam and I'm glad I didn't have to face it on a law school final.
8.12.2007 6:58pm
Harriet Miers' Law Partner:
Professor Oren hit it on the head when he said that "the Rule is concerned with a very important theme in Property law (or in law generally): to what extent do we want the past to have control over the present, or the present have over the future."

All first year course should be a blend of the historical and current. All the posters wanting zoning, nuisance, water, CERCLA, etc., point up the need for reexamining the course of law school curriculum. Perhaps there should be fewer seminars and more required classes. For example, Corporations (now Business Associations) is optional yet is fundamental to understanding any portion of the working world as a lawyer, whether you advise startups on their IP or nonprofits on their program delivery.
8.12.2007 7:20pm
David M. Nieporent (www):
I'm surprised only one person (Ella) had a similar experience to me: we did not cover the RAP in Property, but we did in Trusts &Estates. Although it could fit into either subject area, there was a lot to cover in Property (as others above have noted), so it made sense to hold it off until T&E.

(Not to mention that the primary use was for the Bar, and T&E was taken closer to the Bar than Property, which we took as 1Ls.)
8.12.2007 7:31pm
PaulD:
David,

Was T&E required at your school?
8.12.2007 9:07pm
Vic Stull (mail):
Yes! Because I had to learn it. Did anyone beat me to it?
8.12.2007 9:44pm
triticale (mail) (www):
I'm yet another non-lawyer fascinated by this thread. I'm particularly interested in the "give your estate to a park department or NGO for use only as a park with a reversionary clause" issue, because we are involved with an NGO which has gotten caught by this. Turned out for the best; they turned the training center they were going to sell off into a conference center, and have income and the benefit the deceased intended both.
8.12.2007 10:54pm
Stevethepatentguy (mail) (www):
Here's what my property prof. said: "I will teach you everything you will ever need to know about the rule against perpetuities. There will be two questions about the rule against perpetuities on the bar exam. You will get them both wrong." And then we moved on.
8.12.2007 11:21pm
Fred Flintlock (mail):

I believe that RAP provides a historical connection to the origins of property law and shows how social goals have been the underpinning of property law for many many centuries. Some folks think that "property" is independent of social priorities; the RAP shows otherwise i.e. that "property" has always been somewhat of a social invention and a tool for realizing overall social goals. Whether that's enough. I don't know. I enjoyed it (RAP) actually.

may I add that the Rule is concerned with a very important theme in Property law (or in law generally): to what extent do we want the past to have control over the present, or the present have over the future. It's important to bring out that theme early so that students understand that there are actually policy questions here, although they tend to get submerged in doctrinal minutiae.




This is an excellent rationale. I would add that due to the abstruse complexity of RAP it is particularly effective at getting law students to learn to make complex factual analogies rather than rhetorical analogies in the service of arguing about policy, which is important for law students. In other words, the doctrinal minutiae matters, too.


I wish some of the appellate judges I practice in front of understood the rule. I've received show cause orders for briefs mailed before the deadline but received after the deadline. If you don't know the mailbox rule, you don't know how to calculate deadlines.

I actually won a case once on the RAP. It must have been rare to cover it in law school even 25 years ago, because the contract at issue had been written 20 years before I first saw it in 1986 by a reputable NY firm, the parties had been in repeated litigation over it since then, with top quality firms on both sides, yet nobody noticed the RAP problem. I'm sure I'll never see the issue again, but just that one case made me glad we covered it in law school.



This is another important rationale. Many of the hyper-finicky law school traditions actually do pay off in practice, for those who remember how to apply them. Most lawyers simply don't recollect much of what they learnt, and so their clients suffer. Learning RAP twice will make your students better lawyers and bar preparation for them less stressful.


But the Rule is still effective (leaving aside some sensible reforms, such as abolition of the Unborn Widow rule) in my neighboring state of New York, the domicile of the vast majority of trusts. My neighboring state of Pennsylvania follows Wait-and-see, and a lawyer has to understand the common law rule to work with wait-and-see.



This is also another important point: in actual practice, you often have to understand the law in multiple jurisdictions and be able to integrate your understanding of the law across legal regimes with the ability distinguish one legal regime from another. It is also the case that arguments based on indeterminacy in the law require an understanding of what precisely is indeterminate.
8.13.2007 12:18am
Lev:
The Texas Constitution

Article 1 - BILL OF RIGHTS

Section 26 - PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR ENTAILMENTS

Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.
8.13.2007 12:21am
Fred Flintlock (mail):
Lastly, RAP was part of what made law school fun, for me.

I responded to the hazing, just like I responded to the Socratic method and thereby conquered my fear of public speaking.
8.13.2007 12:24am
Elvis:
Wasn't even on the MBE (or the Cali bar) this summer.
8.13.2007 12:41am
David M. Nieporent (www):
David,

Was T&E required at your school?
I don't specifically remember, but I can logically deduce that it must have been, because I took it, and it wouldn't have been high up on my list of classes to take if it wasn't required.
8.13.2007 1:19am
Flash Gordon (mail):
It's not that hard. It's on the bar exam. It's not abolished in that many places, it's only modified in many states. If you know it, it will be easier to understand the modified form of it in your state. And I think the fact it's on the bar exam is still a good reason to teach it in the first year property class.

Studying for the bar is difficult enough without having to learn the RAP for the first time.

You say the RAP is a waste of time, but if that's the deciding factor a lot of the current law school curriculum should be thrown out. Like say, critical race theory?
8.13.2007 2:17am
Bill Dyer (mail) (www):
I was asked about the Rule Against Perpetuities in a Fifth Circuit oral argument some years ago. (Extended story here.)
8.13.2007 5:06am
Happyshooter:
My state, Michigan, still uses the RAP with exceptions carved out, so the rule is still very germane.
8.13.2007 10:10am
DiverDan (mail):
I took Property from John Cribbet when he was still teaching at University of Illinois, and I did not have a problem with the Rule against Perpetuities - Maybe Cribbet was just better at explaining it - If you simply remember that it ONLY applies to contingent interests, that makes it easier; for EVERY contingent interest created under a trust or conveyance, just ask the question: Is that interest CERTAIN to either vest or fail within a life in being plus 21 years? If not, you have a Perpetuities problem. And yes, even in Real Property cases (i.e., a deed with a possibility of reversion), the Rule against Perpetuities can arise (I think I've seen the issue once in 21 years), but I think that its rarity does not make it unimportant - for both a transactional lawyer and a litigator, its important to be able to spot all of the issues that might become problems, and RAP is a very useful example for teaching the point that your unfamiliarity with legal issues can cause problems for your clients. And a Trusts and Estates lawyer who is not aware of the rule runs the risk of malpractice with every long-term estate plan he creates.
8.13.2007 11:22am
Nobody (mail):
We didn't learn RAP in my first-year property course (Spring 1998, Georgetown Law, Prof. Mike Gottesman). In fact, Gottesman told us that he had never taught property before because he had been under the impression that he would have to teach estates in land and RAP. When he found out that these weren't required in the GULC curriculum, he signed up to teach property.

So I managed to graduate law school without learning a bit about RAP--I knew of it, but didn't know anything about it. I learned it all in Bar-Bri. It had a lot of moving parts, lots of stupid sub-rules to memorize (fertile octogenarian, etc.) but it was manageable. It came up a bunch on the multi-state, as I recall, but I was well-enough prepared for it by Bar-Bri.
8.13.2007 11:38am
Mark P. (mail):
I think that you should keep it in the curriculum. The questions is HOW DO YOU TEACH IT? You can simply teach that it existed, or you can lecture more deeply on its historicy development (and purpose, and demise), or you can use it as an analytical exercise. Your choice. But you would do your students a disservice to not even explain what the rule is.

Aside from the analytical exercise (which I think is valuable, although you can choose many other valuable analytical exercises), there are important legal themes here (some mentioned above): Dead Hand Control; legal formalism vs. legal realism; common law/legislative interaction. Many common-law rules serve the same pedagogical function: the invitee/licensee distinction and the development of strict-product liability (from negligence to 402A to statutes) in torts; consequential damages, proximate cause, and the Statute of Frauds in contracts; the year-and-a-day common-law rule for murder in criminal law. But, like multiplication, we only learn these lessons through repetition, not through any other means. It is a professor's conceit to think that he or she can take teach our students these lessons without the virtues of simply repetition.

The common-law tradition is our heritage. It's important NOT because it is logical, but because it's OURS. After our students grapple with the insanities that have existed in our law, they'll be better able to improve our current system.

Students from a non-common-law background, in my experience, seem to have an overly idealized, mechanical view of the law. I believe that showing students the illogical categories/distinctions that once mattered in our law, and that have been changed by the courts or the legislatures, helps to de-mythologize the law and teach our students the mechanisms of change in our law. In a free people, this is an incredibly important lesson. It forms our basic attitude about the legal process and our legal institutions.

I fear that many members of the academy want to either build up the power of law (for example, in constitutional law or federal courts, over-emphasizing the role of the courts in American democracy) or to destroy the power of law (by, for example, teaching it simply as a tool of the oppressive interests in society), rather than to show students the laws' strengths and its weaknesses, from a realistic perspective. The common-law tradition, well taught, is a good (I would say, vital) part of that education.
8.13.2007 11:42am
Michael Mazzone (mail):
From 1988 until 2001 I practiced in a firm in Texas that specializes in real estate law. We had two pieces of litigation (for a real estate developer) during that time that involved the rule against perpetuities. I have not researched RAP in Texas lately but as far as I know it is still good law. I think it should be covered in Property.
8.13.2007 11:54am
CJColucci:
After seeing the reactions to my recounting of the perpetuities joke, I tried it on several friends, all of whom understood it in the way Litigator thought "unlikely": that the soused alumnus was an idiot who didn't recognize the perpetuities problems that crossed his desk. (They loved Porkchop's take, which would have been spoiled if I set the joke at a 25th reunion, as I had originally planned.)
Perhaps it works better orally, so the teller can reproduce through tone of voice the hauteur of the Eminent Property Scholar.
8.13.2007 12:10pm
ohwilleke:
By far the larger piece of the traditional introductory property law class is spent learning the law of future legal estates in property. The RAP is something of a final touchstone to that instruction. But, the RAP usually comes up in other contexts (e.g. equitable future interests and exceptions to the rule of contracts other than perpetuitites), at least as an issue that has to be disposed of.

Far better to ditch the elaborate fee simple determinable, fee tail, fee simple subject to condition subsequent, etc. and boil that down to merely fee simple, legal life estate and remainder interest (the only legal estates seen in practice), banishing the rest of the future estates discussion to a mere historical footnote or handout not tested upon, than to ditch the RAP all together.

Law school teaches issue spotting, and RAP is an issue that, where the RAP still exists, is something that a legal education really is required to spot. An ability to spot this issue is particularly important for attorneys representing interstate or international clients in multi-state practice.
8.13.2007 3:19pm
ohwilleke:

Drop the RAP.

More Tarot Card games :)


You jest, of course, but one of the ADR rooms at the federal courthouse in Denver has a set of Tarot Cards in it, presumably to assist you in the process of reaching an alternate resolution of your case (it also has a "Magic 8 Ball", dice, and other goodies).
8.13.2007 3:33pm
former law student (mail):
I read 4 law review articles trying to understand the RAP. (That includes the famous one by a professor whose name I can't remember, and his own update.) I couldn't get my head around it. When the exam came around I spent most of my time studying the RAP and similar rules. The main essay on takings and easements. There was barely anything about the RAP on the exam.
Lessons learned: Don't read law review articles to try and understand a legal doctrine. Talk to your professor or get a commercial outline. And don't hyperfocus on "big" doctrines if your professor has hinted he has other interests in mind.
I was such a dumb 1L. Too bad I can't do it over.
8.13.2007 4:29pm
Porkchop:
CJColucci:


After seeing the reactions to my recounting of the perpetuities joke, I tried it on several friends, all of whom understood it in the way Litigator thought "unlikely": that the soused alumnus was an idiot who didn't recognize the perpetuities problems that crossed his desk. (They loved Porkchop's take, which would have been spoiled if I set the joke at a 25th reunion, as I had originally planned.)
Perhaps it works better orally, so the teller can reproduce through tone of voice the hauteur of the Eminent Property Scholar.


Always happy to be of assistance. :-) Humor regarding obscure legal concepts is a special interest of mine.
8.13.2007 11:34pm
Mr. Mandias (mail) (www):
I just had a RAP issue come up last year in rather bizarre circumstances. It was awesome.
8.14.2007 6:31pm
Mr. Mandias (mail) (www):
New Mexico still uses the RAP in some circumstances, though its statutory and not common-law
8.14.2007 6:33pm
Brian Macker (mail) (www):
David Sucher,

<i>I wouldn't be so quick to assume that appreciation for the social policy reasons behind the RAP makes one a socialist. That's funny, actually.”</i>

I recall, and can look at my original comment, and see a question as to why you refer to so nebulous a notion as “social goals” to justify the undermining of the concept of property rights. A question you don’t answer. It was quite clear from your post that you feel property rights are some kind of arbitrary invention that can be violated wily-nily on such pretexts as “social priorities” and “social goals”.

My first question could have been:
“Oh, so it's useful in, what, giving an anti-individual-rights spin to the study of justice?”

From my perspective it seems that you are justifying the violation of property rights for what are self serving reasons. Those reasons can be self serving at an ideological level, a professional level or a personal level. Undermining property rights on the basis of nebulous ideas such as “social priorities” can and does lead to the kind of muddled thinking behind the <i>Kelo vs. City of New London</i> injustice.

BTW, I’m using a definition of socialist that is more general than the term you’re probably used to. By this definition even feudal law was socialist in nature. If I remember correctly the U.S. has a constitution based on individual rights, not social goals. As much as you might not think you are a socialist you sure think like one.

I can think of other grounds for requiring title to property to pass quickly and without encumbrance that has nothing to do with “social priorities”.

<i>One can be a firm believer in private property while also recognizing the necessity (as implied by the RAP) of using &transferring property so that it also benefits society. At least many can do so.</i>

See you think like a socialist even if you don’t call yourself one. How exactly do you define “benefiting society”? How does one measure benefit to society?

You know the anti-primogeniture laws are justified on social grounds. Now I’m all for anti-primogeniture law on different grounds (dead hand type issues) but not on attempts at social engineering. Hell if a bunch of ecology nuts were in control back then they might decide that the maintenance of large estates was a social positive which would prevent the building of highways, maintain green space, act as carbon sinks, and prevent industrialization.

I’m more interested in using rationality and justice as a yardstick in deciding these things, and would approach things very differently than I how I see lawyers doing things. We now have laws on the books allowing the police to charge property with committing crime. This is justified by the “social priority” of stamping out the drug trade. From this non-lawyers perspective it’s a bunch of baloney.

Instead of saying, well we can’t have encumbrances on land because of a need for “using &transferring property so that it also benefits society”, why not just recognize the fact that such encumbrances are in fact trying to set up a situation of perpetually unowned property. They are in effect setting up a situation where nobody owns the right involved. Thus if say I were to add some rule to my deed that says “no mining allowed” it seems to me that that’s the same as creating a separate mineral rights contract and giving ownership of that contract to no one. As with any unowned property it should be open to homesteading. Now if it were actually sold to some other living person that’s a different story. But we are talking here about a perpetual encumbrance where no one has the right to control, where control is the ability to decide differently.

I don’t view property rights as inviolate either. I do however want valid grounds for any violations with compensation to the owner. You get lost in the woods and have to bash in the door of my cabin to survive, well fine, but you better pay for the damages. This violation isn’t allowed because of some “social goals”. It’s allowed because of issues of individual fallibility and reciprocity, not because society is some kind of goal seeking agent. That’s the “social invention” the idea that society is goal seeking.

I can see how a bunch of lawyers would want to view property as a “social invention” as it gives them an opportunity to line their pockets. Now I apologize if you can actually come up with a reason for thinking this way but I think you’ll be hard pressed to actually justify it in a way that would not also categorize rape and other crime as social inventions.
8.14.2007 7:22pm
Brian Macker (mail) (www):
Ella,

"Paul - No offense taken. The historical and practical ignorance of people just never ceases to amaze me. Including one poster who apparently thinks that RAP was created to advance socialist goals."

Offense taken and not taken. You know people like you never cease to amaze me either. Here we are in a thread of an article about RAP which is asking the question of whether it should even be taught because it is so obscure. Yet, you seem to think that everybody and his brother should be up on it.

So I don't see how I can take offense at being called "ignorant" at something many lawyers aren't up on. Especially considering I'm not a lawyer and freely admit to never having heard of RAP before.

So it's quite silly for you to be amazed at this.

Worse, you cannot differentiation references to questions on personal intentions from historical intentions. Nor can you distinguish between intentions, results, and justifications. At least that's what it "seems" to me. See us non-lawyers can stick in the word "seems" so we can wiggle off the hook later too.

My objection was to how the law was justified being generalizable to support all sorts of socialistic meddling. Those are valid concerns and really have nothing to do with what was on the minds of the legislators (or judges) who originally came up with RAP.

You know you can justify the outlawing of rape on the issue of "social goals" or whatever. You can justify it on the basis of chattel ownership of women. Just because I disagree with those two justifications doesn't mean I think rape should be legal or that other proper justifications don't exist. If the historical justification is baloney I don't see why we should hark back to it.
8.14.2007 7:40pm
Law Student:
My professor covered it and I thoroughly enjoyed it. Seriously. Plus, he tested on it and it created some serious upside potential for me on my property exam. I busted the curve, the professor had to give me a score above 100 so that at least one other person in the class could make an A.

Overall, I really dug Property!
8.15.2007 5:31pm