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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?
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Should We Teach the Rule Against Perpetuities? Part II - My Decision:

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):

  1. Should We Teach the Rule Against Perpetuities? Part II - My Decision:
  2. Should We Teach Law Students the Rule Against Perpetuities?
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