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The Rule Against Perpetuities
January 16th, 2023 / By Deborah J. Merritt
We’ve known for a while that the July 2022 UBE included two (yes, two!) essays requiring detailed knowledge of the rule against perpetuities. NCBE has now released the essay questions from that exam, and I reviewed them today. Yes, there are two questions requiring knowledge of the rule against perpetuities–one question labelled “Trusts/Decedents’ Estates,” and the other labelled “Real Property.”
Most alarming, each question requires the exam-taker to recall a different version of the rule. The first question posits that the jurisdiction follows the common law rule against perpetuities; the second refers to the Uniform Statutory Rule Against Perpetuities.
Minimally competent lawyers do not need to recall from memory any version of the rule against perpetuities–much less two versions! A competent lawyer would recall that legal rules sometimes limit the power of property owners to restrict uses of property far into the future (that’s what I call a “threshold concept“) and would then research the law in their jurisdiction. Even if the lawyer had worked in the jurisdiction for 20 years, they would check the rule if they hadn’t applied it recently; rules change and this rule is too important (when it applies) to trust to memory.
Professors who still teach the rule against perpetuities might require their students to recall both versions of this rule for an end-of-semester exam. Memorization is one way to embed threshold concepts, although there are other methods (such as a deep understanding of the policies behind these concepts) that I find more effective. But there is no excuse for this type of memorization on a licensing exam that covers legal rules drawn from a dozen or more subjects.
Let’s hope this unfortunate exam redoubles NCBE’s commitment to limiting both the scope of the NextGen exam and the amount of memorization it will require. But even if that exam fulfills NCBE’s promises, it won’t debut until 2026. We need to reduce the amount of unproductive memorization required of exam-takers during the next three years. Two different versions of the rule against perpetuities? Really?
Don’t Disparage
January 7th, 2023 / By Deborah J. Merritt
The AALS Annual Meeting is wrapping up here in San Diego. I’ve attended several terrific panels, enjoyed time with old and new friends, and had many engaging conversations. But one comment from this meeting will particularly stick with me. Those are some words from Dean Danielle Conway, uttered during an “author meets reader” session focused on Joan Howarth’s superb new book, Shaping the Bar.
“Legal educators,” Dean Conway said, “should stop disparaging one another.” I thought immediately of all the cutting comments I’ve heard (and, I confess, made) over the decades of my academic career. But Dean Conway’s point referred to more than this individual sniping. She noted that whenever we say things like “top-20 law school,” “national law school,” or “top law school,” we implicitly disparage other law schools. And we use those attributions to cloak ourselves in the same kind of gauzy prestige that we purport to deplore in US News.
Why do we so often feel the need to define ourselves as better than others? Or to define ourselves in ways that sharpen divisions in the legal academy? “I teach at a school that values scholarship.” “I teach at a school that values teaching.” “I’m a theory person.” “I’m a hands-on practice person.”
I’m not naive enough to think that we can erase comments that implicitly disparage others. And sometimes it is worthwhile to talk about our differences, especially if we can move past rhetoric to talk about the actions behind those words. How exactly does your school value scholarship or teaching? Is it possible to value both equally? Why not?
But even if we can’t eliminate comparative identifications from our conversations, I’d like us at least to note those phrases when they occur. Was it necessary to refer to a school as a “national one”? Or to note that a friend teaches at a “top 20 law school”? As Dean Conway so acutely points out, we cast a lot of negativity with those phrases.
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