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Wednesday, April 8, 2009

Teaching the Rule Against Perpetuities

The latest issue of The Law Teacher has a short essay by Diane J. Klein (La Verne) titled Why Teach The Rule Against Perpetuities:  Four Good Reasons.  Here are the reasons:

(1) Studying the Rule Against Perpetuities Makes You Smarter

(2) Studying the Rule Against Perpetuities is one of the Most Difficult Things You Will Do In Law School

(3) RAP Problems Have Right and Wrong Answers

(4) The Study of RAP is an Initiation Into Law and Law School

I like the essay, but I think that only point (1) is actually a reason to study the RAP (and a questionable one at that); the rest are reasons to put up with the burden.  I taught the RAP in Property for one major reason:  it is a subject that no lawyer would want to learn on her own in practice.  Teaching the RAP, though, has real costs, in terms of class time that could be better spent on other matters.  Once Pennsylvania (where the vast majority of my students practice) abolished the RAP, teaching the RAP lost out on the cost/benefit analysis.

Ben Barros

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This is kind of just thinking out loud: perhaps the problem isn't so much the substance of the RAP, but the way it's taught? Almost all academic subjects have certain topics that are handled in time-honored ways, whether or not those ways make any sense. Having been in academia, I've also witnessed what happens when someone tries to rock the boat: most of the time the efforts fail, either because the response from the faculty and authorities is dark, or the "reformer" (though heart in right place) hasn't given enough thought to the practical aspects of teaching and the learning.

Now I don't know what, if any, attempts have been made in the Prop community at teaching RAP fundamentally differently. But just looking at the introductory material in all the Prop texts, to say nothing of the caselaw (which of course also reflects the apparently unilateral method of learning the RAP), one has to scratch one's head at the very wording of the definition. The concept really isn't that difficult, but the descriptions are horrific and in my opinion, needlessly so.

Is this a matter of people writing texts and explaining laws, whose mindsets are not naturally equipped to explain subjects like RAP that have a relatively complex logical constituency? Or is it truly just a matter of there not being any easy and alternative way of teaching such an ostensibly convoluted concept? Or does my conjecture have any merit at all--is it the wording of the RAP that is convoluted unnecessarily, or is it the actual subject itself that is convoluted? My opinion is that it's the former. In the end, it doesn't matter. Barros and Moringello had the sadistic pleasure of knowing I had to suffer through that stuff.

Posted by: gompers | Apr 8, 2009 1:15:38 PM

Sam, I think it is because the operation of the rule is so complicated. The rule is easy to state, but very hard to apply. Of course, we made it especially hard for you personally, just for hazing purposes.

Posted by: Ben Barros | Apr 9, 2009 11:40:31 AM

Actually, teaching the RAP is one of the most fun things I do--what else allows you to show a clip from Body Heat and use Anna Nicole Smith as an example of the unborn widow, the endless will contest, AND the fertile octogenarian. But I think it's still of real importance even in states within the USRAP. First, states haven't figured out whether the failure to apply to non-donative interests means that commercial interests are exempt from any rule, or still covered by the pre-existing rule. Second, even in USRAP states, knowing that a conveyance doesn't violate the rule means you can sell your future interest immediately, without waiting for 90 years to pass. Third, conflicts of laws (and their rigidity for land) means that wills should be written to be valid across a number of states, as often should other conveyances (I've got a great 2007 Georgia case holding that a right of first refusal was invalid in a contract that selected Delaware law, bc DE hadn't abolished the rule for that purpose). Finally, stuff about the RAP and tax evasion is really interesting, and ties in nicely to the medieval history of future interests. Or maybe I'm just justifying it because I want to keep showing the clip from Body Heat.

Posted by: Bethany Berger | Apr 13, 2009 2:32:07 PM

Please forgive me (I'm an economist). It is interesting that the teaching of RAP-and comments above-are like a movie budget that allocates $25 million for special effects and 50 bucks for the script. RAP is not, in and of itself, very interesting. In fact, it doesn't appear to even rise to "difficult" status, merely a set of conditions: 1) property transfer assured 2) within measuring time prescribed to 3) being living at time interest created, all leading to a simple, binary decision. What is tough about that, the application? So, what is interesting about RPA? Plenty. The fascinating doctrinal aspects go to long-standing public interest in preventing the intergenerational accumulation and concentration of wealth, e.g., by creation of perpetual trusts to avoid inheritance taxes. Preparing trusts to provide for intergenerational accumulation of wealth without violating RAP is the vulgar, special-effects part of the movie. The script, which apparently requires further development, is about the erosion of society's will to prevent long-dead hands from controlling over time the "fundamental" choices every society must make (how good/services will be produced and how they will be distributed).

Posted by: charles pace | Jul 26, 2009 5:34:50 PM

How will the Rule Against Perpetuities apply in Intrauterine insemination (artificial insemination)?

Posted by: Aramis Lopez | Jan 5, 2010 12:20:29 PM

I wrote the "Law Teacher" essay referred to here, so I thought I'd chime in a bit. Reasons (2) and (3) that I offered are pedagogical reasons, and so they require pedagogical justification (not legal justification). The time it takes to teach RAP properly, and what must be given up to do that, is a big issue, particularly if Property is a single-semester course. I devote a month of a year-long course to it; I might not teach it at all in a single-semester course. But its difficulty coupled with its ultimate clarity (the "right and wrong answers" part) makes it, I believe, quite pedagogically valuable in the context of the entire first year of law school, which many students seem to think is designed to prove that "there are no right and wrong answers" and "anyone can BS their way through a law school exam." Well, not the future interests part, that's for sure. I also think its difficulty, and the psychological rewards to students who figure it out, are especially valuable for students who come to law school having been through a less rigorous college experience.

P.S. To Aramis Lopez -- the short answer is, just as it always has. RAP doesn't care HOW someone gets pregnant - only WHEN. The common law has long had a means of accommodating persons in utero at the death of a parent (those later born alive are treated as in being, otherwise disregarded). The more difficult question is how to treat frozen embryos, who arguably are "in being" but may not be born alive for many years after the death of their parent(s).

Posted by: Diane Klein | Jan 23, 2010 1:13:49 PM

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