Teaching the Rule Against Perpetuities

    One of the courses I teach is Introduction to Property. Until recently, I did not have to cover the RAP because my school required all students to take Trusts & Estates later in their studies. For the last two years, the T&E course was made an elective and the introductory course was expected to at least introduce the students to the Rule. It is on the syllabus for this week, so I’ve been thinking about the Rule and on how I should teach it.

    As I start the class, this is the picture I use on my powerpoint slide as it seems to summarize what law students (and lawyers, too) feel about the rule:

Edvard Munch, The Scream

There are obviously several ways of presenting the rule to my first-year students.

    I could present it on a “this will separate the lawyers from the non-lawyers” basis. This is how my Property professor did it. Of course, my Property professor is absolutely not on my list of teachers to be emulated as the “you’re too dumb to learn this” approach is, in a word, reprehensible. Also, to really concentrate on the RAP would require significant time which would imply that other important property concepts would have to be discarded. Again, from my experience as a student, we spent a lot of time on RAP, but I never learned about easements, real covenants, and a handful of other central concepts until I studied for the bar. I didn’t learn about the concept of equitable conversion that explains so much of the operation of modern property law until I started teaching.

    The opposite approach — mention it but don’t bother teaching any of the details — has great appeal, particularly as it would lessen my preparation burden. As a matter of reality, a full understanding of RAP is beyond most of us (and I’m not excluding myself). It is common, after all, for the folks who teach bar prep courses to advise exam takers not to fully address RAP if it shows up on the bar, limiting their answer to setting forth the Rule and saying that it may apply. Why shouldn’t this be the teaching approach in an introductory course as so few of the students will ever need to know anything about the Rule?

    Ultimately, I have decided to try and find a middle ground based primarily on the way RAP gets treated in practice. When I was in practice in the 1980s (before the Uniform RAP was adopted in Conn.), my firm did a fair amount of estate planning and probate work. We established a rule for all of the attorneys in the firm. If RAP was implicated in anything we were drafting or interpreting, all of the partners were required to get together and collectively decide if RAP was being properly applied. This often involved talking with other attorneys outside of the firm. I am planning on informing my students about this rule, why my firm had it, and cover the Rule with enough detail that my students will recognize where it is potentially problematic.

    Clearly, to do this, the students need to know more that just the rule. I have added many problems to work through, particularly ones that present RAP in the context that it arises in the real world (gifts to grandchildren of a living person, for example). At the same time, I leave out any serious consideration of how to choose a valid measuring life as the details would take far longer than I am willing to give.

    For those of you who have or are also teaching property, does a practitioner’s view of RAP leave out something that is too vital to leave behind? Or, despite how much I hope this isn’t true, have I just found another way to torture my students for a return that is insignificant?

Comments

[NewPropProf]

I've struggled with this while doing prep this summer, and am revisiting that now that I am teaching it. I know of some that don't teach it at all, which I think is not ideal, and others who spend weeks on it -- which is plainly torture and perhaps an unwise use of class time (totally agree with you on this point). I never worked on a RAP issue in my practice, so I am using the present and future estates workbook which I think does about the best job possible in explaining the answers to the students. RAP is dense and inaccessible, but I think the workbook makes it less so. Ultimately, I think a practitioner perspective can help, I've used it on other concepts (easements, trespass) and it seemed to liven the class up a bit.

[Calvin Massey]

RAP can be effectively taught in two or (at most) three class sessions. Use Jee v. Audley for the common law rule, Symphony Space for its application to commercial transactions and as a segue to the reform doctrines and USRAP. Of course, this works only if you have taught future interests well, because a student has to be able to characterize the interests accurately and determine when the uncertainty as to future ownership (not possession) will be eliminated. Take a look at the treatment of RAP in my new Property casebook (West, 2012) to see how this works.

[Ben Barros]

I think that Property professors face a choice with the RAP - either teach it in depth, and take two weeks to do it, or only do a superficial coverage of it that will allow students to spot the potential issue and seek expert advice if needed. I used to do the former, but since Pennsylvania abolished the RAP, I take the later approach. I briefly go over the concept of the rule, go through a few examples of the rule in action, and expect the students to know what interests are subject to the rule so that they can seek advice if needed. Ralph, I like your old firm's approach to the rule.

I have a modest disagreement with Calvin. I don't think that the RAP can be taught effectively in two or three class sessions, if by effectively we would expect students to be able to accurately apply the rule in all circumstances. Calvin's approach would effectively teach the concept of the rule, but actually being able to spot the lives in being or their absence takes a lot of practice.

[Roman Hoyos]

I actually find that the section on possessory estates and future interests is the easiest to teach in property. And for some reason my students seem to enjoy the instruction that goes on in that section more than any other. I have had uniformly positive feedback on that section. Wierd, I know.

I think a problem-based method is the way to go. We don't discuss any cases in the section on RAP, or possessory estates/future interests in general. There are a couple in the reading, but we don't discuss them. I spend one week on possessory estates and future interests (I teach them together), and another week on RAP. 8 hours total. The first day we discuss how to create a possessory estate, and the future interest(s) that attaches to each estate.

The second day I do nothing but problems, basic ones, anywhere from 10-15 in 2 hours. I put students' names into the problems, and tell them the first student named is called on, and can rely on help from any other student identified in the problem. We then work through each problem together in PowerPoint. I do the same thing the next week for RAP. On the first day, I give them a 4 or 5 step process for applying RAP. The second day we spend on problems about RAP just as we do for PE/FI. It's more important, to my mind at least, to get the students to understand the basic reasoning process behind future interests and RAP than its complexities.

Students love the problems. They get a lot of practice working through them in each class. One student told me he impressed some attorneys he worked with with his understanding of RAP. And he was not a top student in the class. A nice example of a successful transfer of knowledge, I'd say.

I stay away from more complex dimensions of RAP, like the unborn widow rule. It just unnecessarily adds to the students' confusion. And the likelihood of it being tested on the bar is remote. (Not that I teach to the bar, mind you.) Besides, if they have the basics down, students should be able to reason through the unborn widow rule themselves, once they get RAP down and they're ready for it. So I teach RAP as the highly formalistic doctrine John Chipman Gray intended it to be. (Just had to throw that in there.)

[Dan Ernst]

Mary Bilder's thoughts on teaching the RAP: http://lawprofessors.typepad.com/property/2007/08/more-on-teachin.html

[www.adelebags.com]

Good post. I know this sometime is difficult to decide.