Law in Contemporary Society

Fuck This Stupid Rule

Yesterday I spent what felt like an eternity - probably around 6 hours - trying to learn how to apply the Rule Against Perpetuities. Over and over, I thought I had it, but when I got to the next fact pattern I fell on my face again. Admittedly, math is not my strength, and my ability to imagine people dying at age 5 or procreating at age 80 just doesn't cut it. What's wrong with my brain, I thought, why can't I understand this? Then it happened: I realized that I don't have to learn the Rule Against Perpetuities! It's my education, damnit, and I don't give a shit about this stupid rule! I'd rather learn more about the tragedy of the commons or the public trust doctrine than wrap my brain around some legal fiction that all but a handful of jurisdictions have done away with. I think I just might write in my exam that I - along with the vast majority of US jurisdictions - think this is a stupid rule, and that perhaps it's time to strike it from the standard 1L Property syllabus. So what if I get a bad grade in Property? I feel empowered.

-- AnjaHavedal? - 02 May 2009

If you get a bad grade in property, I doubt you will feel empowered.

-- WilliamKing - 03 May 2009

Dear Will: Your comment is an adventure in logic. I did not say that a bad grade in Property would result in my feeling empowered, but rather that feeling empowered to determine the content of my education results in my not caring about a possible bad grade in Property. Also, what's up with the bitterness? If you're going to make a comment like that on the wiki, I think you should explain it. Right now it just comes across as a lame smack in the face.

-- AnjaHavedal? - 03 May 2009

I can't speak for Will's intention to smack or not to smack you in the face, Anja, but I read his comment as acknowledging the reality in which we live: we will all be graded, and there's someone in your class making sure that she knows the rule against perpetuities so she can get those points that you will miss. It doesn't seem fair to reduce that observation to "lame." I think it's great that you came to the conclusion that you either don't care about your property grade or, perhaps more realistically, think that not knowing the R.A.P. will not result in a loss of a critical number of points on the exam. If it were me, I would make a post like this, feel good for an hour, and then realize that I am a Type A perfectionist personality who will not feel comfortable until I have a passing understanding of the course material, and I'd go back to the books. I related to Will's comment not out of bitterness, but because I am aware of that tendency in myself, and the comment seemed to be a good answer to the bright idealism of your first post. (Fortunately, we didn't really cover the rule against perpetuities in my section wink )

As far as the logic goes, does it really make sense for you to feel empowered at a decision that might result in you feeling less empowered (getting a bad grade)? Unless getting a bad grade would ultimately make you feel more empowered because you owned the bad grade and created it for yourself because you refused to learn something irrelevant.

I have felt all semester as though the real value I'm getting out of this class may not be reflected in my performance. This course, and Eben's influence, may very well help me save myself from an unsatisfying career, in a way I don't think I would have been able/aware enough to do without it. Still, I haven't evolved enough not to care about doing the best I can to understand the material and score well on exams. I admire you if you have. However, if my interactions with classmates are any indicator, one of the things we all do is lament how unprepared we are, and how much we don't care about any of this grading crap, and then we secretly run home and stay up all night adding flowcharts to our outlines. They are color-coded. None of us are very good at being transparent about how much we really do care about this stuff, and I suspect that tendency may be worse in this class where we've discussed at length how stupid and irrelevant the grading system is to our worth and education.

...Finals time is stressful. If you've found enlightenment, Anja, then go with it. It shouldn't matter who is skeptical and who is not.

-- MolissaFarber - 03 May 2009

Anja, I agree that you did not say that a bad grade in property would make you feel empowered. Nevertheless, you did conclude your post with the conclusion "So what if I get a bad grade in Property?" followed by "I feel empowered." My comment wasn't intended to be a slap in the face.

-- WilliamKing - 03 May 2009

  • In the first place, Anja, I agree with you that it's a mistake to spend any time in the first-year property course on the rule against perpetuities. For one thing, future interests aren't really a practically important part of learning modern property law: they're better left to a first course in Trusts and Estates. Second, the rule is a minor portion of a larger and more important set of legal ideas that modern property teachers, unless they are legal historians and understand sixteenth- and seventeenth-century developments well, haven't mastered. When I taught property I didn't teach the rule, much less the absurd fertile octogenarian and unborn widow edge case issues. Anyone who wants to learn the rule's context and reasons of development can take English Legal History with me sometime.

  • Second, if you needed six hours to understand the rule, you were taught badly. A few simple principles will help:
    1. A remainder, or other future interest, need only be considered with respect to the rule if it presents a "player to be named later" situation. Any example of a future interest that vests on creation, that is, where the holder of the remainder or reversion has a name, you need not trouble yourself about.
    2. If a reversion or remainder doesn't vest immediately, that is, you don't know the name of the person who will get it, ask yourself one question: "Will I know the name of the person who gets this remainder within one existing lifetime?" In other words, is there someone whose decisions during life, or whose dispositions at death, will give me the name? If so, will that person named actually be able to claim that interest (for example, by coming of legal age), within twenty-one years nine months of the end of the life I just named? If so, the remainder or reversion is within the rule. If not, not.
    3. Remember that the reason the rule was adopted in the first place is that it gives a simple answer using a simple algorithm. The rules it replaced, and which were used earlier in the seventeenth century, were more complicated. Law professors in the US in the late twentieth century liked to confuse law students with the rule, because it's as technical as their limited acquaintances with historical English land law got, but the rule itself was seen by the lawyers who made it as, and it operates as, a simplification. The supposedly complex edge conditions are actually just unusual factual settings, which a sensible course of question asking such as I gave above, will neutralize: they're just facts like other facts and they don't matter any more than the more prosaic usual facts do. The "measuring life" for a remainder is always to be found within the language of the relevant grant or other instrument, and the whole thing is simple because it was meant to be simple. The law teachers who pretend it's complicated are just preening.

  • Third, you are correct that not knowing how to work the rule against perpetuities will not cause you to get a bad grade in Property. No Property teacher, however insane, could justify making an examination in which future interests, let alone the rule against perpetuities, would be the major issue on which your performance was measured. If you meet a perpetuities-susceptible issue in the exam, just change the facts to avoid the issue and drop a footnote, indicating that you've changed the facts in order to avoid any possibility of triggering the rule. That will show you know the rule is there, and you will get either almost as much credit as you would have gotten the other way, or more, if your teacher has any respect for creative thinking.

  • I'm surprised that so much of the conversation here was about the grades, and whether William was dissing you or not (which he surely wasn't), and so little about helping you to understand the rule. Is this more of the "we have to compete against one another and shouldn't be helpful to one another" bullshit?

I don't agree with this last point. After reading a post about how happy Anja is that she's decided she doesn't care about the Rule Against Perpetuities, and she feels empowered by ignoring it, we're supposed to respond by explaining it? I don't mean to make this about me and Will, since our class didn't learn the rule (although admittedly this sounds defensive), but in general, such a response doesn't seem to get at the revelation that motivated Anja's post - namely, she doesn't want to learn something stupid and antiquated, regardless of what it could mean for her grade (which, I agree with you, is probably quite little). - MF

  • Well, I'm certainly not criticizing you for not explaining something you didn't learn, and I'm glad there's at least one Property teacher still working around here who can dispense with the rule. But it seems far less counterintuitive to me than to you that a student proclaiming empowerment from not learning is actually seeking reassurance and assistance. I run into that situation fairly frequently around this time of the year, though rarely more than two or three times a day.

It’s funny that Anja’s realization that she doesn’t care about her grades is met with the unquestioned presumption that she does in fact care, but won’t admit it. (Will insists that she does care by assuming that a bad grade will make her feel like a failure; Molissa affirms Will’s “good response” to her “bright idealism” and implies that we all secretly care and just don’t admit it). After a semester in this class spent bandying about the idea that grades are bullshit and have little if any bearing on our development as lawyers or our worth to society, it’s a bit surprising that someone who professes detachment is treated like a self-delusional and na´ve idealist. So the more she protests that she doesn’t value what the majority values, the less credible she sounds. Welcome to the loony bin.

-- LeslieHannay - 04 May 2009

I’m not sure why this topic turned sour. My intention in sharing my newfound sense of empowerment was that it would rub off, not rub people the wrong way.

The patronizing tone of the comments (save Leslie’s) reminded me again of what I find to be the most unfortunate aspect of law school: The assumption that we are all the same. That we want to work at big firms, just graduated from Yale, have well educated parents, are Type As, and don’t know ourselves. I saw this class as a break from that – I thought that in “Crazy Man’s Class” I would be taken for what I said and wrote.

But instead, this class has been a bit like a high-school relationship: A lot of games. Only instead of “I really like him but I pretend that I don’t” there is “you say you don’t care about grades but we know you do” and “do you think I’d criticize the hell out of your essay if I didn’t think it was good?” So much game playing; it’s exhausting. When I said that I decided that the Rule Against Perpetuities was not worth my time, I meant it. I wasn’t looking for reassurance. Why did the subsequent comments all make this about me? Who cares how I feel about property?

Is this not the mindset that we have been decrying all semester? For months, we have been criticizing the system that turns us into a herd of sheep, jumping through an insane series of hoops – writing competitions, student organization boards, EIP – because everybody else does. The other day, at the CLS International Advisory Board luncheon, the CLS alumna next to me readily admitted that she never wanted to be a big-firm lawyer but just went with the flow and this is what happened. She made partner, but she is still unhappy. Yet I can’t feel compassion for her. Just like I can’t feel bad about people who stress out about competition in law school. It’s a choice.

We can all choose to march to our own drum. So if you decide not to, don't complain about other people imposing demands on you. Don't complain about the competition. It’s your choice to compete. Every day, we wake up and choose to go to school. So I chose to ignore the Rule Against Perpetuities and go for a run in Central Park. We are all individuals, and we should not assume anything about the people we are surrounded by. Some students may choose to color-code their outlines and compete for As, but that does not preclude me from choosing to read a novel instead and get a B. If that means I cannot clerk at the Supreme Court, then I don’t want to clerk at the Supreme Court.

We live once (I think) and what we do with that one shot is for us to decide. For each of us, it is what we make it. There is no such thing as “have to” or “should.” You do what you choose to do.

-- AnjaHavedal? - 07 May 2009


You did, to some extent, invite commentary and criticism, and what followed is about what I would have expected had I made the same post.

I have, however, noticed that many of our fellow students are very confused by the fact that different people have different goals. A friend of mine has been spending the past four months trying to convince me to go to EIP, without any encouragement from me. Why is this?

I suppose that, later in life, it may be difficult for two people who have widely divergent incomes to remain friends. Perhaps this problem is already beginning to manifest itself.

-- WalkerNewell - 07 May 2009

"The patronizing tone of the comments (save Leslie’s)"

Anja, in your opinion, the only comment that wasn't patronizing was the one that didn't challenge you? Really? I'd hoped we'd reached the point in the semester where we didn't automatically attribute a post espousing a counter-argument to closed-mindedness.

I believe Will and I both made valid points, and it's borderline offensive to see our work being reduced to "paternalism." Reading your comments (which, since I did not color-code, I may have misunderstood) I felt as though you didn't even read my post, you just skimmed it for the parts that upset you and then responded to those. As people who hope to change society using words, it's important for all of us to understand how we come across to others both verbally and in writing. I'm disappointed at the way my comments seemed to come across to you, and your comments in turn have made me upset. I would like to know what I could have done to communicate my point to you in a way that did not offend you, short of agreeing with you. I'd appreciate your insight on this.

Now, let's agree to bring the tone of mutual defensiveness down a notch. Here's a nice, and somewhat relevant, Johnny Cash song.

Walker: it's interesting to think about the income as the source of a split between friends, but I wonder if the income is symptomatic of a greater difference, or whether it's the problem in itself. Also, something to note: the push towards EIP is more than just cultural, it's actually factored in to all of our financial aid calculations and offers. I could be incorrect here, but I believe that school-sponsored grants and loans all decrease in the third year under the assumption that we will all take highly paid summer positions.

-- MolissaFarber - 08 May 2009

Molissa, I did not mean to upset you and I'm sincerely sorry that I did. I have changed the post slightly to make it less about you, which of course it was not. But I did read your original post several times, and though you may not have meant it, I found the tone to be patronizing ("bright idealism" and the last paragraph implying that I cared even though I said I didn't). Please know that I don't in any way judge your color-coding or flowcharting or anything else that is a sign of healthy ambition. We're all different, and that's wonderful.

I think Walker's hypothesis about divisions based on income rings true. The split, however, is probably symptomatic rather than causal. I think the Swedish saying "children that are alike play the best together" (doesn't sound very good in English) applies in law school and in life; in the long term, we tend to gravitate toward people who share our values, and people withe the same values tend to end up in roughly the same income bracket.

-- AnjaHavedal? - 08 May 2009

I think that this entire thread highlights the problems of understanding and receiving subtext through wiki/email/web conversation. Anja seemed mainly to be venting in the first post, saying that if learning something she didn't want to know meant getting a lower grade, she'll just live with a lower grade. I'm not sure how useful it is as a post, because it is the conclusion, rather than the beginning, of a discussion.

Will and Molissa seem to be pointing out that whatever Anja thought about being "empowered," she will be objectively rated based on that grade, and whether she cares or not, others will, and it does us some good to remember that those people are out there. This is a useful tonic to keep in mind, but also probably precisely what Anja was choosing to ignore. Individual words and phrases ("bright idealism" etc) that would pass unnoticed in verbal conversation got latched onto because of the cold, impersonal style of the medium (where we think we are writing with all the tone of speaking, but the tone is not present on the page). It is much easier to believe we are being patronized than challenged, and much quicker and simpler to respond to. But it's an impulse that does not, I think, serve us.

The most fruitful point I see is Walker's -- we are currently bound together in a community that will break apart among wealth and power lines as soon as we enter our varying careers. It is also, I think, something we can keep in mind and try to fight, but it is worth remembering that over a hundred years ago Henry Adams made the same point, when he was betrayed by someone who had become Deputy Undersecretary of whatever, and wrote that "A friend in power is a friend lost."


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r17 - 07 Jan 2010 - 22:34:06 - IanSullivan
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