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?