Sunday, April 03, 2011
Why Teach the Rule Against Perpetuities?
It is always a profound, sensual pleasure to be back guesting at Prawfs, especially so near the occasion of this inimitable site’s glorious sixth (!) anniversary. I will begin this guest stint with a question that is particularly salient for property profs, though anyone who has experienced first-year property may relate.
The question is: Why should property professors teach the Rule Against Perpetuities (RAP)? Most readers will likely recall the hoary RAP from their 1L property course. The rule, which has its roots in the Duke of Norfolk’s Case (1682), expresses a simple principle against excessive dead-hand control of property (usually land) transfers, albeit in terms that are famously challenging to understand. Thomas Grey’s may be the most familiar formulation: No interest in land is valid unless it must vest, if at all, within 21 years of the end of some life in being at the time of the transfer.
The RAP is notorious as one of the most difficult, if not the most difficult, concepts students traditionally learn in law school (I'm not sure this is right, but it's certainly the RAP's reputation). In Lucas v. Hamm (1961), the California Supreme Court held that the RAP was so confusing that drafting an instrument that violated the Rule could not be a basis for attorney malpractice. The Rule's confounding nature also plays a central role in the major plot twist of the 1981 neo-noir film Body Heat.
There are some plausible reasons to be skeptical that the RAP belongs on a modern property syllabus. First, many states have abolished the RAP by statute, so it’s not even law in many jurisdictions. Moreover, the RAP is complex enough that teaching it well takes, I’ve found, at least four full class-hours, and given that property is often hard enough to cover (at least if you have only four credits to do it), this time could be allocated to other issues that people may find more instinctively interesting or important.
These are reasonable arguments, but having thought about them a lot, I still think it is worthwhile and spend some time teaching the RAP in my property class. I explain the reasons for this choice, and what it may mean about law pedagogy more generally, below the fold.There are some reasons I’ve heard others advance for teaching the RAP that are non-starters. One colleague explained that he teaches the RAP because it’s a rite of law school passage, creating an experience that all law professionals can look back on one day with a rueful smile as they reflect on the rigors of law school. I don’t buy this one. Given the high cost of tuition, we owe students better justifications for taking up class time than simply preferring to indulge in a hazing ritual. Getting rid of the RAP in a given class may mean that all lawyers cannot commiserate about the fertile octogenarian or the unborn widow, but this seems like a pretty thin consideration if teaching it doesn’t bring any meaningful advantages.
Another reason often suggested for teaching the RAP is that it continues to appear on the MBE section of the bar, and given its complexity, students need an early introduction to it. This justification inveighs in favor of covering the RAP, albeit pretty weakly. I’m not against the idea that class should, to some extent, provide a basis for material that will be tested on the bar, but law school courses are about much, much more than bar prep, so merely invoking the notion that a subject will be on the bar doesn’t weigh very heavily in this respect.
I am unpersuaded by the objections to teaching the RAP, and actually believe it's an important and useful subject for 1Ls. Part of the reason is substantive. The RAP is not as important as it used to be, given some states' abolishing it, but it remains the law in many states (including California, where most of my students will practice). And even though boilerplate savings clauses may provide a ready tool for accounting for the RAP, it still remains necessary to consider its implications for property transactions, particularly in the context of trusts and estates.
But the more important reason has more to do with pedagogy than substance. I teach the RAP because of, not despite, its notorious difficulty, and because facing (and, hopefully, overcoming) this difficulty can be an important instructive experience for law students. It is true that understanding the RAP isn’t easy. I struggled with it in law school and when I teach it in first-year property, I still review the subject matter extensively to refresh my facility with it. But it is not true that understanding the RAP is impossible. As I tell my students, it’s like a crossword puzzle: at the beginning, it’s all blank space and obscure clues, but with the right amount of concentration and work, what once seemed impossibly foreign actually becomes comprehensible.
This is the bigger point: A common misapprehension is that the point of law school is just to transmit information about the blackletter content of substantive rules. This is, of course, really only part of the story. If telling students about rules were the whole point of law school, we might as well just read from a BarBri outline. Especially in the first year, when courses are pitched at a higher level of generality, the point of courses is not only to deliver the content of the law, but also to hone skills that college increasingly fails to impart: critical thinking and close reading; understanding and application of complex rule systems; and the ability to patiently and thoughtfully engage the kinds of intellectual challenges that lie at the core of any legal problem.
I teach the RAP because it provides excellent training in all of these skills. Understanding the RAP requires students to parse the language of the rule; comprehend it through repeated application; and to invest significant time concentrating on these tasks. This is especially true in light of the Rule’s notorious difficulty. Mastering the RAP is both a classic exercise in training the mind to think legally as well as an object lesson in the rewards of engaging complex rule structures. Once you’ve run a marathon, a mere 10K is no sweat (or so I assume). Similarly, students who conquer the RAP earn the sense of self-belief that inheres in conquering any significant challenge, so that the myriad other intellectual challenges of law school and beyond will seem less daunting by comparison.
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I find your rationale for teaching the Rule unpersuasive. Sure it's "difficult" and an "exercise in training the mind to think legally." So? Lots of things we could teach are. Many of those other things will be more relevant to the legal practice of more students, more generalizable throughout the law, and better-suited to a good learning experience. You need to make the case not that students will benefit from studying the Rule, but that students will benefit from studying the Rule more than they'd benefit from studying whatever else they could be doing with their time and attention. I think, for example, that time spent working with the details of a recording act offers many of the same challenges, with more payoff.
To some extent, you're secretly embracing the rite-of-passage rationale. Students have heard that the Rule is notoriously difficult. And while it is difficult, it is possible for them to understand it, more or less, after some concentrated study. Therefore, among difficult topics you could give them to study, the Rule will have the greatest psychological importance in convincing them that yes, they can surmount the challenges that law school and their legal careers will throw at them. A less famous topic wouldn't work so well.
Posted by: James Grimmelmann | Apr 3, 2011 10:54:32 AM
Thanks for the detailed rejoinder. Your response has been useful in helping me to sharpen my sense of why it still makes sense to teach the Rule.
If it were true that the Rule were no different than any other property doctrine, I'd probably agree with you. But I think it is different, for two reasons.
First, I think the Rule is more complex, and so brings greater analytical challenges, than almost any other doctrine students study in property, and perhaps in all of law school. This complexity resides in two places. First, deciphering the Rule itself is difficult. Grey's formulation is the clearest one, IMO, but it still requires differentiation of features like the nature of the interest, available measuring lives, existence of validating lives, the time of vesting, etc. When teaching the Rule, I diagram out a five-part dissection of the Rule as an object lesson in how to make analytical sense of complex (and complexly phrased) legal rules. Second, as this point illustrates, the Rule has more moving parts than other rules. The trickiest recording statute is the race-notice variant, which is far less complex by comparison, requiring students only to figure out which party recorded first, and perhaps also whether that party had notice of prior interests. As an exercise in application of complex rules, I think the Rule does provide better mental exercise than most other doctrines.
Second, I think the Rule has special psychological status in the law school experience, and this is relevant to my rationale for teaching it. So I do think you're right that my rationale relies to some extent on the way the Rule is perceived, but this is not at all an embrace of the hazing rationale. The hazing rationale simply says, "I suffered through this, and you should too, period," and that strikes me as a self-indulgent, almost mean-spirited argument that's got nothing to do with my approach. The only extent to which the myth of the Rule enters into my rationale is that students wrongly believe that the Rule is something impossibly difficult. I want them to realize that yes, it's challenging, but no, it's not impossible to get, and is in fact something they're fully capable of understanding. The hope is that by deciphering a doctrine that is (wrongly, IMO) perceived as nearly impossible to comprehend, students will gain confidence about their analytical abilities in a way not available from understanding doctrines that are not so laden with intimidating reputations.
Posted by: Dave | Apr 3, 2011 11:29:21 AM
I would be curious to know *how* you teach the Rule. What do your students read, what do you do with class time, and what do you ask them to do outside of class?
I'd also dispute your dismissal of the recording acts. Really understanding one requires a student to understand: (1) what kinds of transfers count as conveyances subject to the act, (2) what "recorded" actually requires, (3) what circumstances put a party on notice of another's claims, (4) which parties can invoke the act's protection in the first place, and (5) how to integrate all of this in a complex series of transactions. The overall intricacy is comparable, but each individual component is separately illuminating: it helps a student make sense of out some other recurring topic in property law. Contrast that with validating lives, which tell one about little more than the requirements of the Rule itself.
I think the Rule has real value as a capstone to the study of future interests. In a course with significant coverage of them -- which I tend to think is better done in elective Wills and Trusts than first-year property -- it's a good way of bringing together a lot of material: e.g., the classification of interests, vesting, and policy issues about dead-hand control. But I think the overall intellectual value of detailed study of future interests in a first-year property course is dwarfed by the disproportionate amount of time it takes to cover them at the level required to get to the Rule. The Rule doesn't just cost you the class session(s) you spend discussing it; it also forces you to cover all the other topics without which it doesn't make sense.
Posted by: James Grimmelmann | Apr 3, 2011 1:16:03 PM
I don't teach Property, and my own Property professor didn't teach the rule, but I would think one additional benefit to teaching the rule is that it probably is an effective doctrine on which to test students. Writing a good exam is an art, in that you want to find subjects and facts that will separate out students who have better lawyerly skill from students who have worse lawyerly skill. Tricky legal rules can help, as the students with more lawyerly skill will generally apply them with significantly more skill and knowledge than those with less. This helps ensure that law school grades are meaningful indicators of lawyerly skill, which is a significant goal of exams -- especially 1L exams.
Posted by: Orin Kerr | Apr 3, 2011 3:03:08 PM
Prof. Kerr's point is interesting, but is it possible that the ROP is such a squirrely and sui generis rule that mastery of the ROP may not meaningfully coincide with lawyerly skill?
My (not very good and very green) 1L property professor did teach the ROP, and as been alluded to above, it became a massive black hole in to which much class time vanished.
Posted by: Keith | Apr 3, 2011 6:18:28 PM
I'm with James in thinking that you are bringing a little of the "hazing" rationale into your justification. If the point of teaching the RAP is only to train the students to work with a complex rule, there is no particular need to use the RAP. You can make up your own hopelessly complex rule that will serve the purpose even better, and then to suit Orin's point you can write the entire exam around your made-up rule.
Rather, I think at least one reason to teach the RAP is that it forms part of what every lawyer is expected to know, an element of our common language. You can pejoratively call that "hazing," but it is an unfair label because there is more at work than simple spite. While it might seem strange to teach a rule just because everyone else does, it in fact makes sense quite a lot of the time. After all, why does everyone follow the US News ranking so closely, given that the methodology is about as arbitrary as 21 years of a life in being?
Posted by: TJ | Apr 3, 2011 10:59:02 PM
James, I actually do teach the Rule to a great extent as a capstone for the immediately preceding coverage of estates in land and future interests. This way, the Rule provides another look at and application of those topics, and doesn't raise any of the concerns about necessary and time-consuming prerequisites that you identify (and which, I agree, would be prohibitive).
This allows me to address the Rule in two two-hour class sessions. One of which is devoted to parsing the Rule and its variants along with discussion of a few illustrative examples that we work on as a group. The other is focused on reviewing advanced topics related to the Rule and working through a detailed problem set. The background reading I assign is pretty brief: just the overview of the Rule in the Dukeminier text (though this will probably change next year when I switch books).
As for complexity, it's an interesting question that probably warrants another post, but this discussion has made me think that complexity in legal rules means at least two things. One might be called vertical complexity; this is the task of identifying the meaning of ambiguous term ("vesting", "recording", etc.). The other might be called horizontal complexity; this is the extent to which the rule itself has different moving parts in its application. So a rule like "actors are liable for negligence" is very vertically complex but not that horizontally complex, while a rule like, well, the Rule is highly horizontally complex. But I think the Rule also possesses vertical complexity as well; at the very least, vesting looks different depending on whether we're talking about contingent remainders, executory interests, or vested remainders subject to open.
Orin: I've found the Rule is a great way to separate good from great students on the multiple choice portion of the exam, though I have yet to figure out a good essay question centered around the Rule. Someday.
Keith: I don't think so. My sense is that rules are rules, and that the obscurity of any rule (including the Rule) may warrant not covering it for practical reasons, but obscurity doesn't mean it wouldn't have the kind of pedagogical advantages I think teaching the Rule brings. If the Rule were abolished entirely, though, then I think that would be a good reason not to cover it. Again, someday.
TJ: I think your rationale for teaching the Rule--that it's part of the common language or experience that all lawyers should have--is plausible, but this isn't at all what I meant when I referred to "hazing" above. The hazing rationale goes like this: "I suffered through this in law school, and now I'm going to make my students suffer, too." For reasons that should be self-evident, this is an awful reason for covering any subject matter, and I totally reject it.
Your point, though, seems different from hazing, and not unappealing; perhaps facility, or at least familiarity, with the Rule is part of what it means to be a lawyer. I'm not sure this is true, but if it were, then yes, it does seem like a reasonable argument in favor of covering the rule in property class.
Thanks, all, for the interesting and thought-provoking discussion.
Posted by: Dave | Apr 4, 2011 12:04:24 AM
A side point about examining on recording problems, which I do: rather than telling students "the jurisdiction is race-notice," I give the text of an actual recording act (which kind varies by year). It is astonishing to me how many students do not properly identify the type of recording statute they're dealing with, even though so far I've only used statutes quoted in the text. This is part of why I think both recording and RAP problems help develop the care we expect of lawyers--getting it right requires attention to detail and being able to recognize patterns in initially obscure language.
Posted by: Rebecca Tushnet | Apr 4, 2011 8:14:55 AM
I am fully in accord with James's basic points, although I do admire your general commitment to having the student work through a complex legal puzzle in order to sharpen their understanding.
Like James, I believe that the entirety of the Future Interests canon belongs squarely in wills & trusts. The problem to me is that not the doctrine is complicated (I don't agree that it is as complicated as you insist; rather, to me, the principal difficulty is that pieces of the puzzle simply don't make any real sense from a policy standpoint). The largest problem is that we simply cannot unpack, in a four-credit course, the underpinnings of bequests, alienation rationales/limits, the dead hand problem, tax matters, etc., etc., so we are giving our students a too-truncated picture of property law fundamentals.
Suggestion: Why not use servitudes law as the focal point of puzzle solving? There is surely much puzzling and complex in different aspects of this (very important) body of property law!
Posted by: dan rodriguez | Apr 4, 2011 2:53:27 PM
RT: True enough, though here I think recording statutes may pose a challenge that the RAP does not, because of their nonuniformity. That is, the existence of variants of recording statutes in different states challenges students to parse differing statutory language that boils down to one of the three variants (race, notice, or race-notice). By contrast, the RAP is typically expressed in the same or very similar language, so that students would likely know they're looking at the RAP, though despite this uniformity it remains difficult to interpret, at least initially.
Dan: Well, it looks like I'm in the minority on this one. Fair enough. In terms of property versus trusts and estates, I'd be glad to delegate all of estates in land, future interests, and the Rule to my colleagues who teach those courses, but for whatever reason (perhaps just an institutional idiosyncrasy) the e&t course at my school doesn't address these topics in any detail, so it falls to the property teachers.
In terms of servitudes law, certainly it provides lots of interpretive challenges, and I focus on it in 1L property partly for that reason. But this discussion has convinced me of one thing, which is that my rationale for teaching the Rule resides to some extent in its (again, not justified) reputation as impossibly hard to understand. This rep means that conquering the Rule is a distinctively empowering experience for students to have, and this is an experience that is all the more valuable early in law school.
Of course, the title of this post is not "All 1L property courses should cover the Rule" for a good reason--I can see why someone wouldn't want to, especially if it were covered in a different class at the same institution.
Posted by: Dave | Apr 4, 2011 6:25:49 PM
Rebecca, I completely agree on teaching an actual recording act. I give my students the text of the New York act, including the definitions. I think it helps focus attention on what the act is actually doing, rather than an abstract set of rules to be memorized. For our in-class problems, I tried, whenever possible, to insist on answers that were justified using actual statutory text.
I've actually been experimenting with this more generally this semester: I made up a course supplement that has the New York statutes for about half the topics we cover. Then, in class, after we do casebook passages to learn the range of variations among the states, I always circle back to ask, "And in New York ...?" I like to emphasize that there are such things as statutes, that they can be parsed out, and that they really do answer a lot of questions.
Posted by: James Grimmelmann | Apr 4, 2011 10:12:07 PM
The problem of sorting who-teaches-what in the relationship between first year Property and its various upper division courses (in the Land Use/ Enviro trajectory; the T&E trajectory; and, if you swing this way in 1L Property, IP) is very much idiosyncratic to the school. At Florida, we have had a relatively strong set of T&E offerings, including a specialized course in Future Interests, as well as lots of opportunities to take specialized tax courses, but only about 1/2 to 2/3 of our students take the T&E course. And the bar examiners continue with their future interest fetish. And lots of students have trouble with the future interests. (Hmm, I wonder if there's any relationship between those two things?)
So I'm more persuaded that a reason to continue to do future interests, up to and including a basic coverage of RAP, is for bar prep. Note that I do not make that argument lightly or frequently. I don't let it drive Property or Torts (when I teach it). But future interests are very tricky, and those who have trouble with it have lots of trouble with it. It's really worth giving it to them in a way that can help them understand the basic concepts so that their bar prep course isn't the first time they've seen it.
Posted by: Mark Fenster | Apr 4, 2011 10:26:29 PM