| | Fuck This Stupid Rule
Yesterday I spent what felt like an eternity - probably around 6 hours - trying to learn how to apply the Rule Against Perpetuities. Over and over, I thought I had it, but when I got to the next fact pattern I fell on my face again. Admittedly, math is not my strength, and my ability to imagine people dying at age 5 or procreating at age 80 just doesn't cut it. What's wrong with my brain, I thought, why can't I understand this? Then it happened: I realized that I don't have to learn the Rule Against Perpetuities! It's my education, damnit, and I don't give a shit about this stupid rule! I'd rather learn more about the tragedy of the commons or the public trust doctrine than wrap my brain around some legal fiction that all but a handful of jurisdictions have done away with. I think I just might write in my exam that I - along with the vast majority of US jurisdictions - think this is a stupid rule, and that perhaps it's time to strike it from the standard 1L Property syllabus. So what if I get a bad grade in Property? I feel empowered. | | | -- WilliamKing - 03 May 2009 | |
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- In the first place, Anja, I agree with you that it's a mistake to spend any time in the first-year property course on the rule against perpetuities. For one thing, future interests aren't really a practically important part of learning modern property law: they're better left to a first course in Trusts and Estates. Second, the rule is a minor portion of a larger and more important set of legal ideas that modern property teachers, unless they are legal historians and understand sixteenth- and seventeenth-century developments well, haven't mastered. When I taught property I didn't teach the rule, much less the absurd fertile octogenarian and unborn widow edge case issues. Anyone who wants to learn the rule's context and reasons of development can take English Legal History with me sometime.
- Second, if you needed six hours to understand the rule, you were taught badly. A few simple principles will help:
- A remainder, or other future interest, need only be considered with respect to the rule if it presents a "player to be named later" situation. Any example of a future interest that vests on creation, that is, where the holder of the remainder or reversion has a name, you need not trouble yourself about.
- If a reversion or remainder doesn't vest immediately, that is, you don't know the name of the person who will get it, ask yourself one question: "Will I know the name of the person who gets this remainder within one existing lifetime?" In other words, is there someone whose decisions during life, or whose dispositions at death, will give me the name? If so, will that person named actually be able to claim that interest (for example, by coming of legal age), within twenty-one years nine months of the end of the life I just named? If so, the remainder or reversion is within the rule. If not, not.
- Remember that the reason the rule was adopted in the first place is that it gives a simple answer using a simple algorithm. The rules it replaced, and which were used earlier in the seventeenth century, were more complicated. Law professors in the US in the late twentieth century liked to confuse law students with the rule, because it's as technical as their limited acquaintances with historical English land law got, but the rule itself was seen by the lawyers who made it as, and it operates as, a simplification. The supposedly complex edge conditions are actually just unusual factual settings, which a sensible course of question asking such as I gave above, will neutralize: they're just facts like other facts and they don't matter any more than the more prosaic usual facts do. The "measuring life" for a remainder is always to be found within the language of the relevant grant or other instrument, and the whole thing is simple because it was meant to be simple. The law teachers who pretend it's complicated are just preening.
- Third, you are correct that not knowing how to work the rule against perpetuities will not cause you to get a bad grade in Property. No Property teacher, however insane, could justify making an examination in which future interests, let alone the rule against perpetuities, would be the major issue on which your performance was measured. If you meet a perpetuities-susceptible issue in the exam, just change the facts to avoid the issue and drop a footnote, indicating that you've changed the facts in order to avoid any possibility of triggering the rule. That will show you know the rule is there, and you will get either almost as much credit as you would have gotten the other way, or more, if your teacher has any respect for creative thinking.
- I'm surprised that so much of the conversation here was about the grades, and whether William was dissing you or not (which he surely wasn't), and so little about helping you to understand the rule. Is this more of the "we have to compete against one another and shouldn't be helpful to one another" bullshit?
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