The Better Chancery Practice Blog

By: Donald Campbell

Happy New Year to all! I’m getting back into the groove here at the law school and an interesting topic has been circulating on a Property Professor list serve I follow: should the Rule Against Perpetuities still be taught in the first year Property law course? This same topic circulated on the list serve about 5 years ago and the consensus was that it should be taught. This time, however, the consensus has flipped, with most saying that they do not teach it or that they just introduce it but do not test it. There are 4 primary justifications given for moving away from the Rule: (1) the Rule has lost relevance with the move to abolish the Rule or to adopt the modern “wait-and-see” approach; (2) the time it takes to teach the rule is disproportionate to likelihood that it will arise in practice; and (3) the Rule is best left to upper level classes (such as Wills and Trusts); and (4) the Bar exam rarely tests the Rule (and the NextGen bar will not test it at all).

I have always taught and tested on the Rule. I have also taught (and tested) the other common law rules that abolish future interests: Doctrine of Worthier Title, the Rule in Shelley’s Case, and Destructibility of Contingent Remainders.

I come to the hive-mind to ask: should I still teach the Rule? What about the other rules that destroy future interests? I teach Wills and Trusts and I do not teach the Rule, so if the students do not get exposure to it in Property they are not likely to have any exposure to it. Does the Rule still have relevance today? Does it come up often in practice? Any other thoughts?