Perpetually Clueless

Originally appeared in the March 1998 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Perpetually Clueless

BY ANDREW J. McCLURG

Some readers have e-mailed suggesting that the Rule Against Perpetuities would be a natural fit for this column. Of course, they’re absolutely right. Other than the Bluebook, there is perhaps nothing more intrinsically funny in all of law.

You can easily test this theory by gathering any group of highly-serious senior partners in a conference room. The more dour the partners, the better the test results. First, get them in a really bad mood by telling them insurance costs are skyrocketing, the copiers are harassing the fax machines and the staff is threatening to strike unless Casual Day is expanded to include Pajama Week and Beach Party Summer.

Administer the test by reading explanations of the Rule Against Perpetuities from any standard hornbook. By the time you get to the part about fertile octogenarians, the partners will be flipping each other’s ties, snorting milk out their noses and making funny sounds with their armpits.

Why is the Rule Against Perpetuities so funny? Lots of reasons. For one thing, no other legal rule has doctrines that sound like old blues tunes. “Bad As To One, Bad As To All” and “Unborn Widow” could have been classic hits for Muddy Waters.

But the most hilarious thing about the Rule Against Perpetuities is that no one understands it. Yet everyone still vividly remembers not-learning the rule. Studies show that all the average lawyer knows about the rule is that, for reasons never fully developed, “21 years” is important to property law.

To this day the legal folklore circulates that because the rule is so complex, a lawyer cannot commit malpractice by misapplying it. However, my colleague assures me this is not true. He says that lawyers can indeed get sued for violating the rule, it’s just that no one can ever figure out why.

But pity poor law students, who must actually worry about the rule. Here are a typical law student’s class notes on the Rule Against Perpetuities:

RULE AGAINST PERPETOOTIES — No contingent future interest … transferee … vest or fail within 21 years … death … life in bean??? creation???? interest???????

PROF SAYS RATIONALE STRAIGHTFORWARD — A rule against remote vesting designed to limit … grantees-ORS! … Alien Nation of property??? … something something something …

Cut off contingent??? uncertainty???? inhibit transfer?????

EX. A conveys Blackacre to B for life then to children of B who survive her. B has son C. EASY ANSWER: Contingent remainder subject rule <<< find out what this means.

SLOW THE **** DOWN! Something about???

BUY PROPERTY FLASHCARDS!

IF CONFUSED, ASK THESE QUESTIONS:

1. Is there any way the interest might have or might NOT have vested OR failed to vest … 21 YEARS?

2. Can a measuring life be alive … 21 YEARS?

3. Are you 21 YEARS OLD? Must be drunk to understand Rule — prof joke.

4. … 21 YEARS 21 YEARS 21 YEARS …

[Three more pages of clarifying notes]

Prof says don’t worry about. NOT ON TEST. No one understands. Not malpractice!!!

That barely scratches the surface of the Rule Against Perpetuities. Don’t even get me started about it because these things can go on and on for more than … you guessed it, 21 years.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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