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.