Thanks to everyone who commented on my earlier post asking whether I should continue to teach the rule against perpetuities to students in my introductory Property course. I did not expect this topic to attract as much interest as it has!
I have now decided that I'm only going to make a very minimal effort to include the RAP in the course: I will assign a brief description of it from the textbook (along with a more detailed description of the modern rules that have replaced it), but not do a class discussion of it or include it in the final exam. That way, students who want to know it will have a chance to do so, but very little time and effort will be wasted on it.
Some of you have presented various arguments as to why the RAP deserves to be included in the course. Let me briefly note the two most important: the claim that the RAP helps students understand the historical development of property law, and the possibility that it might help teach them to "think like a lawyer." The first argument is surely true: the RAP dates back to late medieval times and knowing its history surely does provide some insight into the development of the law. However, I already have other sections of the course that describe the development of property law from its medieval roots. The RAP adds relatively little to these sections and does so in an extremely inefficient way because it takes a lot of time and effort to explain it in a way that most students will understand.
The "think like a lawyer" argument also has some validity. However, there are many other parts of the Property class - and other courses in the required law school curriculum - that achieve the same goal. In a broad survey course where time is at a premium, I don't want to force students to learn doctrines that have no utility other than improving their thinking skills - especially if I can instead improve those skills by teaching them material that is actually important and useful. On a different note, I am less convinced than many other law professors that "thinking like a lawyer" is really fundamentally different from other forms of logical reasoning.
The bottom line: teaching the RAP does have some value, but not enough to outweigh the substantial opportunity costs. It's not that learning the RAP is worthless; it's that the time and effort needed to learn it will be better spent on other things.
UPDATE: Some commenters on my earlier post also express skepticism that the RAP is so difficult to learn. My experience is that some students do indeed grasp it almost immediately. But many others take a long time to do so, and a substantial minority never fully understand it. Some of this may be an indication of my shortcomings as a teacher, and some may be a case of students just being lazy. However, I know that other property professors at various schools have had similar experiences, and I also know that quite a few students have trouble with the RAP even after making an extensive effort to grasp it. If the RAP were a truly important rule crucial to understanding modern property law, I would say that the students (and I) just have to suffer through it. But it isn't, so we shouldn't.
UPDATE #2: As noted in my original post, my argument applies only to teaching the RAP in an intro Property course. There may be other and better arguments for teaching it in specialized courses on estate law or legal history.
Related Posts (on one page):
- Should We Teach the Rule Against Perpetuities? Part II - My Decision:
- Should We Teach Law Students the Rule Against Perpetuities?
Your students could have a minor leg up on the bar exam if they could get actual instruction on the RAP.
Your students could have a minor leg up on the bar exam if they could get actual instruction on the RAP.
I covered this in my original post. In brief, my answers to it are 1) I'm not teaching a bar prep course, and 2) one can easily pass the bar exam without knowing the RAP (which accounts for only a tiny fraction of the questions on the test in most states).
That said, I don't think my knowledge of the RAP carries much value. For one thing, there were already ample illustrations of the development of property law from its medieval roots prior to our treatment of the Rule; for another, as "brain exercise" and think-like-a-lawyer training, I thought there were other portions of the course that were more challenging and relevant (our unit on landlord-tenant law, for instance); and for a third, if what I read in my casebook is true, jurisdictions are increasingly adopting wait-and-see and/or cy pres reformation rules, which blunt the application of the Rule as a practical matter.
I guess this is a windy way of saying that the RAP seems to me to be kind of "law geek" stuff.
http://news.bbc.co.uk/2/hi/health/6220523.stm
Does this mean that when the record gets pushed out another 13 years, the RAP will stop being absurd?
Property law is somewhat difficult to "grade" in the sense that there are few underlying themes. One cannot "get" property law in the way one gets Con Law, Evidence, Contracts, or Civ Pro.
This is why most property finals have a general formula: one takings section (essentially con law), one RAP (essentially a brain teaser), and one "substantive" section. This will ensure that "top performers" (that is, people who are going to do well on their other classes) will get the As.
Without it, you have to do a multiple choice or short answer exam, hitting all the varied subjects (and making the final somewhat about memorization), overweigh the takings question even more disproportionately than usual, do a difficult-to-fairly-grade, broad "policy" or "theme" question, or ask a few "applied law" questions from a couple of the subjects, making the exam seem a little unfair and random. Or you can do a mix of the above.
Either way, RAP and Takings provide ways that 1st years deem "fair" to give a final grade, and without it, making a "fair" property exam (that is, one that students will (1) think is fair and (2) feel that their grades reflect their capacity, while (3) putting the kids who have the most natural aptitude for high level legal analysis at the top, so they can make law review and get better clerkships) will be difficult.
As to what it means? Beats me.
Property law is somewhat difficult to "grade" in the sense that there are few underlying themes. One cannot "get" property law in the way one gets Con Law, Evidence, Contracts, or Civ Pro.
I try NEVER to include material in a course just because it might make grading easier. The object of grading is to assess the students' knowledge of useful and important material, not vice versa. Including material in a course just because it makes grading easier is a reversal of the real reasons for having both grades and the course itself.
However, I have had final exams with no RAP material on them before, and they were not more difficult to grade than other exams. There is plenty of other property doctrine to test the students on, don't worry!
As for not testing on it, that is up to you, but if you let your students know this they won't spend any real time trying to figure it out. If I am told material will not be on the test I zone out and stop paying attention - no sense filling my head with unnecessary clutter.
Next thing, you'll be telling us that you don't teach seisin anymore.
Actually, I thought all that old common law stuff was terribly interesting and I'm surprised that you have students who don't get it. My guess is that they are also the students who don't pass the bar exam. Why tailor a class to the least capable?
Sorry. I will post no more, forever. Or until 21 years have elapsed from the end of a life in being when I took that culinary arts class, whichever comes first,
I am now prepared to take my lumps.
Well I'm a little unclear about who can be used as one of the "measuring lives" (I assume there is some limit, presumably there has to be some connection to the property, and you can't just declare everyone on Earth as part of the set of measuring lives.
It has to be a reasonably identifiable class of people. It's relatively common to use a "savings clause" using the decedents famous people with large families. The decedents of Joseph and Rose Kennedy are a common example.
Personally, I don't think it's all that useful and can see other things that are much more important.
SFB
I'm going to sleep pretty soundly, thank you! I might be more concerned if the students had spears, of course:).
In Texas, we take a sensible approach to attorney malpractice in wills. Since there is no relationship between the drafting attorney and the beneficiaries, they don't have standing to sue for a badly drafted will. Before he dies, the testator can't sue the attorney because there hasn't been any injury yet, and won't be until he dies. The estate can't sue, because it is not injured by a badly drafted will, only the beneficiaries. So, the natural answer for your question is that no-one in Texas can sue an attorney who screws up a will clause.
I did not comment in the previous thread (very busy this week), but I wanted to add my recent experience in property. My professor covered RAP, Shelly's Case, and other (dead) law extensively. However, he placed it within context- the struggle over the ability to alienate property. The constant attempts by owners to exercise control over property far into the future (dead hand control) and the resultant inability to obtain clear title and alienate land by the present occupiers/owners of the land. Once this historical context was understood, everything about property laws (from a personal, societal, and governmental perspective) made sense. Do we prefer individual liberty and the ability to freely contract? Or is the ability to freely alienate property, and to have property a title free of uncertainty, more important? What laws best accomplish the former and the latter.
Also, Restatement of Property (3d) is miserable. Obviously written by students who could never understand the difference between a real covenant and an equitable servitude.
Don't forget the Unborn Widow(er).
As someone with no more legal experience than 3 years of lawschool and a summer clerkship, my take on this is simple. If your goal is to make first year law-school classes more useful or practical, then you might as well try to move Everest with a teaspoon. The first year is all about hazing, hardening soft minds, and seperating the wheat from the chaff.
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It shouldn't be. Anyone care to defend the idea that lawyers and the law shouldn't be rational? That is if you are concerned with justice, not merely winning.