Monday, August 13, 2007
Should We Still Teach the RAP?
So asks Ilya Somin at the VC:
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.
Ilya's point about the changes to the RAP is an important one. Pennsylvania just abolished the RAP for newly created interests (wait-and-see will continue to apply to pre-2007 interests), and I'd bet that the RAP will be abolished completely within the next twenty years. Many of the statutory changes, however, still involve some application of the common law rule, which suggests that keeping the RAP in first year Property is a good idea. The RAP is also something that might be hard to grasp without having some exposure to it in law school, and the Rule does come up in some odd contexts. On the other hand, teaching it well takes at least four hours of class time. With time scarce, I wouldn't be surprised if the RAP is increasingly cut out of Property.
[Comments are held for approval, so there will be some delay in posting]
Given the increasing emphasis on bar prep, my guess is that the RAP is not going away in third-and fourth-tier schools. In first-tier schools, the trend may differ.
More broadly, I think if the Bar Exam was abolished, we would have a radically different property curriculum.
Posted by: Mike Lewyn | Aug 20, 2007 11:34:08 AM
The RAP was the greatest utility known to man to address the issue of preventing wealth accumulations in a small minority of the population by legally injecting prohibitions to prevent it.
Law has nearly now destroyed the facility meant to prevent wealth concentration in the few for too long a period, and the ability to render void transfers that did not recognize it.
Commercial law has now disabled the RAP and allowed any and all forms of property transfers to be made regardless of their impact, and the means to escape estate and inheritance taxes that operated as the safety net of family preference over commercial preference.
The use of trusts in probate law greatly amplifies the kinds of transfers that can be made, by whom, and without regard to the wishes of the testator so that defeasance under the bona fide purchaser rule has few boundaries in the distribution of wealth or social conscience.
Using the corporate take over model with trusts has led to a revolution unexpected with respect to probate and real property law that can quickly alter the concept of family inheritance and legacies - the ability to flip the entire estate out of the hands of families without regard to impact, wish, or integrity.
Creating common creditor claimants upon an estate rather than owners is the ultimate free trade in family succession planning usually not welcome by those disseized of their family wealth.
Posted by: Pat | Oct 15, 2008 9:05:14 AM
I think one can teach the rule well in less than four hours, if the class has covered future interests already. And given that it's on the bar I think it's worthwhile covering.
What to cover in a property class is a topic we should spend more time talking about here. I think the basic property class should be a lot more than a bar prep--but I also think it should prepare students for the bar. To that end, I spend a lot of time with real estate transactions, mortgages, servitudes, and recording acts--as well as introducing students to the important and interesting public law parts of property.
Posted by: Al Brophy | Aug 13, 2007 1:32:25 PM