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):
- Should We Teach the Rule Against Perpetuities? Part II - My Decision:
- Should We Teach Law Students the Rule Against Perpetuities?
Whether that's enough. I don't know. I enjoyed it (RAP) actually.
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.)
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.
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.
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.
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?
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.
I'm sure I'll never see the issue again, but just that one case made me glad we covered it in law school.
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
I do not know whether this justifies the amount of class time that must be devoted to RAP, but I think it is important.
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.
This is because you do not work in Hawaii. The criminal code there is based on the MPC.
I don't know whether the rule has been overturned in Texas, but the trusts established in my will expressly comply.
Link
CALI has half a dozen lessons about RAP and a couple of podcasts as well from real live Property Law Faculty.
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.
More Tarot Card games :)
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 . . .
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?
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...
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.
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.
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.
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.
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?
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.
Then again, I was a math major, so I may be an oddball.
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
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.
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.
Maybe it should all leave the curriculum and be replaced by CERCLA.
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?
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).
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!
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.
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.
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.
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?
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.
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.
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.
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.
I could be mistaken, but I believe that reversionary interest is vested, therefore it is not subject to the Rule.
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.
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,
Which book did you use?
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."
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.
http://www.usfca.edu/pj/articles/BodyHeat.htm.
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?
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).
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.
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?
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.
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.
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."
That a thread on RAP has 95 comments.
It doesn't matter that it's on the Bar exam. Every bar review course teaches it adequately enough for the bar exam.
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.
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?
Yes.
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.
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]
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.
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.
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.
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.
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.
(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.)
Was T&E required at your school?
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.
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.
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.
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.
I responded to the hazing, just like I responded to the Socratic method and thereby conquered my fear of public speaking.
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?
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.
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.
Perhaps it works better orally, so the teller can reproduce through tone of voice the hauteur of the Eminent Property Scholar.
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.
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).
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.
Always happy to be of assistance. :-) Humor regarding obscure legal concepts is a special interest of mine.