Journal of Legal Education, Vol. 54, No. 2 (June 2004), pp. 264-282

Abstract

The Rule Against Perpetuities offers an opportunity for those who teach property or trusts and estates to review some of the major schools of jurisprudence and how accurately or inaccurately those schools characterize law and legal development. At first blush, the idea that the rule can be used to advance a student's mastery or consideration of theory seems absurd. But this essay will outline an innovative approach to the rule that allows those who teach it to mix theory in with the difficult problems that the rule creates.

The modern pedagogical approach to the rule treats it as an embarrassment -- the difficult family problem that is not discussed in public. Teachers see it as bad medicine that must be dispensed and swallowed quickly, and different teachers vary on how much of the rule's technicalities they think the student should master (or at least endure). Students share the bad medicine view of the rule. Ask students what subject within property they hated most, and most will answer that it was the Rule Against Perpetuities. Indeed, it might rank as the most-hated doctrine studied in the first year of law school (although the Erie doctrine might give it a run for its money). Arcane in origin, difficult to understand and apply, unintuitive, and seemingly random in its effect, the rule brings together many of the difficulties that students have in adjusting to the rigors of legal study. Students joke about it, have nightmares about it, and learn through rumor that the rule is so complicated that, when they are in practice, they will not be held liable for malpractice if they draft an instrument that is subsequently held void because of the rule. Graduating third-year students frequently say-in all seriousness-that they will gladly spot the bar examiners any perpetuities problems and try to gain credit elsewhere on the exam rather than try to relearn the rule. In sum, students cannot understand why they have to endure the rule except as some kind of horrible historical accident of which they are the most recent victims. They certainly cannot explain what the rule means or does not mean from a jurisprudential standpoint-if ever they consider or are invited by their teachers to contemplate jurisprudence.

Of course, some might question the propriety of introducing jurisprudence into the first year. Some people believe that the first year should consist primarily of building-block courses, i.e., courses that introduce students to basic legal rules that will appear in private practice and on the bar exam. Others believe that the first year should introduce students to legal skills or to legal reasoning and schools of jurisprudence more generally, giving the students a broader view of law as a whole before they leap into a specific advanced area. These approaches are not mutually exclusive, and teachers often use basic courses in the first year as an introduction to a school or several schools of jurisprudence along with an introduction to doctrine and skills. The typical courses offered in the first year lend themselves to this approach, and Property is no exception. For example, nuisance provides good material to introduce students to the Coase theorem and law and economics; marital property law provides good material to introduce feminist jurisprudence; zoning provides good material to illustrate concepts in public choice theory. Textbooks for Property offer the teacher tools for taking this approach to introducing jurisprudence. The Dukeminier and Krier text has an excerpt of Harold Demsetz's economic account of the development of private property (along with critiques of it); Joseph Singer's text offers a good overview of the law-and-economics approach to nuisance law, as well as a critique of that approach; and the Cribbet text begins with two chapters devoted to different views of what constitutes property and what are the attributes of property.

Once the text hits the Rule Against Perpetuities, however, theory apparently stops, and I suspect that theory stops in classroom instruction as well. Property texts attempt to streamline presentation of the rule more through problems than through cases. Most property teachers gear their teaching of the rule to its basic mechanics, simply to get their students through the material, prepare them for the questions that they might face on the bar exam, and thus help them avoid embarrassment. Because of its complexity, the rule has generated its own set of specialized secondary study materials simply to explain how the rule works. Students can use CALI exercises or buy supplemental texts, workbooks, flashcards, outlines, or sample problems, to help them through these rough waters, all in an effort to avoid embarrassment on the final exam or on the bar exam. Property teachers whose primary field is not property or trusts and estates might also hew closely to the text and prepared problems to avoid being embarrassed themselves because they do not know the answer to a variation on one of the problems.

There is, however, another deeper embarrassment that the rule creates: no major school of jurisprudence can comprehensively explain the origins of the rule, why such a complicated rule continues to persist, why the rule does not appear in jurisdictions other than those with an English common law heritage but why it does not appear in all of those, and why it has not been abolished or reformed until recently, and why reform or abandonment has occurred where it has occurred and when it has occurred. Each school of jurisprudence may be able to answer one or more of the preceding questions, but none provides a comprehensive explanation for the existence and persistence of this complicated conundrum. The rule thus provides property teachers an opportunity to invite their students to take a step back from staring into the abyss of perpetuities problems and consider different theoretical attempts to define why the law looks the way it does and whether different schools of theory accurately capture the entire picture. The Rule Against Perpetuities might embarrass not just law professors and law students; it might also embarrass schools of legal thought.

In this essay I start by briefly describing the history of the rule, the standard problems that students confront, and some of the places where the rule is found geographically. The conclusions of this discussion are that the rule is fairly incoherent from a policy perspective and that it has not been widely adopted except in portions of the British Commonwealth and the United States. I then identify a few modern schools of jurisprudence -- specifically law and economics, public choice theory, critical legal/race/feminist studies, the theory of legal transplants, and comparative institutional analysis -- and show how each fails to explain the rule comprehensively.

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