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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?
DJR:
I did not read the earlier thread, but surely someone pointed out that the RAP is on the bar exam, and bar/bri's instruction is: If you know it, great; if not, it's too late so spend your time elsewhere.

Your students could have a minor leg up on the bar exam if they could get actual instruction on the RAP.
8.13.2007 6:26pm
Mike S.:
I am no lawyer, but if this rule is of no current importance, but is a significant part of a bar exam, why not modify the bar exam to reflect current reality? You don't have to crank start a car to get a driver's license anymore; you don't even have to drive a manual transmission.
8.13.2007 6:30pm
KRIS:
I think you have hit upon the truly logical compromise for the RAP. However, please don't forget that sometimes climbing the mountain simply because it's there has some value. I barely passed my first-year property course, and could not even begin to explain the RAP on my graduation day. I was so terrified of property on the bar exam that it occupied a majority of the first three weeks of my studying for that test. On the day that I found I could explain the RAP to non-law friends in a way that I understood (even if they didn't :), I quit studying property and moved on to other subjects. My practice MBE score placed me in the 90th+ percentile for property. Taking into account the "opportunity costs," it's just not smart to spend a month on the RAP in your class, but please, let your students know that finally understanding the RAP gives one a sense of belonging to the profession that may be relatively pointless, but is no less appreciated than the day someone first calls them "Counselor." Those of us who have suffered through it are not just well-hazed members of a club; we "thought like a lawyer" for one brief, shining moment.
8.13.2007 6:31pm
John Beukema (mail):
I also didn't respond to your first post on this subject, but I should have done so, if only to lament your plan to deprive students of learning about the delightful concepts of the Fertile Octogenarian and the Precocious Toddler. The terms (certainly not the concepts themselves) are all that I remember about the RAP from my T&E class many years ago.
8.13.2007 6:32pm
Ilya Somin:
I did not read the earlier thread, but surely someone pointed out that the RAP is on the bar exam, and bar/bri's instruction is: If you know it, great; if not, it's too late so spend your time elsewhere.

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).
8.13.2007 6:45pm
Brett:
I finished my Real Property course this past June, and I have to say that I'm among those who didn't really find the RAP all that opaque. I grant that my professor's treatment of the RAP didn't go into excruciating detail about what, exactly, constitutes a "measuring life" for the purposes of the Rule (for our purposes, a "measuring life" was anybody alive at the time of the conveyance, who was either mentioned in the conveyance or whose actions could affect vesting), but within that caveat I didn't feel as if the Rule was all that difficult, either to state or to apply.

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.
8.13.2007 6:48pm
Duffy Pratt (mail):
A quick search shows the current oldest mother was 67.

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?
8.13.2007 6:49pm
Gordo:
As a person who took the multi-state test in the recent past, the test I took had NO questions on the RAP. If it's on the test, it would seem to be a minor point.
8.13.2007 7:03pm
Justin (mail):
You're going to regret this decision at the end of the year, for one reason: RAP, like takings, makes grading final exams pretty easy.

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.
8.13.2007 7:03pm
BobH (mail):
I took first-year property in 1974 (from the late, great Jesse Dukeminier -- we will not soon see his like again), and I would venture to say that I am the only member of my section who can tell you, from memory, that the Rule says An Interest, To Be Valid, Must Vest, If At All, Within Twenty-One Years After The End Of A Life In Being At The Time The Interest Was Created.

As to what it means? Beats me.
8.13.2007 7:10pm
Brett:
It's spelled "Rule Against Perpetuities", BobH, but it's pronounced "Throat Warbler Mangrove". :)
8.13.2007 7:21pm
Ilya Somin:
You're going to regret this decision at the end of the year, for one reason: RAP, like takings, makes grading final exams pretty easy.

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!
8.13.2007 7:35pm
fabulinus (mail) (www):
I had to learn RAP this past summer and really didn't find it all that difficult. We were taught that a number of states have all but done away with the law but my state 1) has not (perpetual trusts are probably allowed, but that won't stop a malpractice action for a poorly drafted will/conveyance), and 2) even if my state had a modernized rule, if ever I were to move to a state with a traditional rule, I could have a problem.

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.
8.13.2007 7:39pm
BobH (mail):
Brett: Throat Warbler Mangrove?!? Professor Dukeminier always pronounced it "Luxury Yacht"!
8.13.2007 7:41pm
Observer (mail):
Prof. Somin,

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?
8.13.2007 7:48pm
BobH (mail):
When I took first-year property law I learned about livery of seisin. Later I took a culinary-school class dealing with the preparation of organ meat, and learned about seasonry of liver.

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,
8.13.2007 7:55pm
BobH (mail):
OK, I must break my promise just above to propose another first-year property hypothetical. Let's say you get your invoice from the electric company in the mail, and you give it to your friend for safekeeping. Your friend moves away unexpectedly, taking the invoice with him. Is it proper to call him and say, "Won't you come home, bill bailee"?

I am now prepared to take my lumps.
8.13.2007 7:57pm
Jason F:
I really liked learning the Rule Against Perpetuities. Then again, my Property professor specialized in medieval English law, so he had a passion for the Rule and similar doctrines like the Rule in Shelley's Case. That passion came across in class, and made the topic as interesting and easy to grasp as anything else in law school.
8.13.2007 8:11pm
DDG:
I'm one of those guys who understood the rule immediately. But I have a distinct memory of attempting to teach it to others the night before the Property exam, and I'm sure they never got it.
8.13.2007 8:12pm
Tim Fowler (www):
I'm not a lawyer, and I've never been in law school, but the rule doesn't seem all that complex. Maybe in practice applying it in certain situations, or in the context of some other rule, might not always be easy, but the basic rule is pretty simple as far as law goes.

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.
8.13.2007 8:51pm
DDG:
Tim Fowler,

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.
8.13.2007 9:17pm
Realist Liberal:
I'm with the couple of people that got it but tried to teach it to others. I was even a Property TA and several of the students did not get it either from the professor or me or the TA for the other property section (of course that could be that all three of us are just horrible teachers).

Personally, I don't think it's all that useful and can see other things that are much more important.
8.13.2007 9:49pm
Porkchop:
It's a rite of passage. Some cultures have vision quests, others have ritual scarification, yet others require that a young man kill a lion with only his spear. Law students have the Rule against Perpetuities. Ilya, you destroy the dreams of your students. How can you sleep at night?
8.13.2007 11:40pm
chuckc (mail):
As a non-lawyer, I have a question. If my lawyer drafts my will improperly, and thus creates a RAP problem which is discovered at probate, who gets to sue him (and would his malpractice carrier from long, long ago have to pay?)
8.14.2007 12:20am
Lev:
That was an older case, in California I think. It was not malpractice for the lawyer in question to be clueless about the Rule.
8.14.2007 1:15am
SFBurke (mail):
The RAP has an amazing intimidating effect on people. When I took the CA Bar exam, the "practical" section of it (basically writing a memo or a brief) involved the RAP. People were completely flustered by this and were sure they had failed the exam. The funny thing was that there was no need to actually do any RAP analysis or understand the rule at all. It was mentioned in the question but it was basically a red herring. And certainaly many people took the bait. (or whatever it is one does when one sees a red herring).

SFB
8.14.2007 1:24am
Ilya Somin:
It's a rite of passage. Some cultures have vision quests, others have ritual scarification, yet others require that a young man kill a lion with only his spear. Law students have the Rule against Perpetuities. Ilya, you destroy the dreams of your students. How can you sleep at night?

I'm going to sleep pretty soundly, thank you! I might be more concerned if the students had spears, of course:).
8.14.2007 2:05am
Duffy Pratt (mail):
chuckc:

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.
8.14.2007 7:59am
loki13 (mail):
Prof. Somin,

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.
8.14.2007 10:26am
Dave in Alexandria (mail):
No one has mentioned that the Rule Against Perpetuities was used as a central plot point in the movie Body Heat with William Hurt and Kathleen Turner. Use of RAP in invalidating a phoney will started the unraveling of the murderers' "perfect crime."
8.14.2007 3:17pm
Insignificant Dallasite:

I also didn't respond to your first post on this subject, but I should have done so, if only to lament your plan to deprive students of learning about the delightful concepts of the Fertile Octogenarian and the Precocious Toddler.


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.
8.14.2007 3:57pm
Brian Macker (mail) (www):
"I am less convinced than many other law professors that "thinking like a lawyer" is really fundamentally different from other forms of logical reasoning.
"

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.
8.14.2007 7:59pm
Mary Katherine Day-Petrano (mail):
Definitely. It is the best part of law school. Learning it, and watching others learn it.
8.15.2007 5:05am