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?