Scott Andrew Shepard, "Which the Deader Hand? A Counter to the American Law Institute's Proposed Revival of Dying Perpetuities Rules." 86 Tul. L. Rev. 559 (2011).

 

The mere mention of the rule against perpetuities (RAP) generally results in dazed and puzzled looks on the faces of most law students and practitioners. Along with such favorites as the rule in Shelley’s Case and the doctrine of worthier title, the RAP was adopted by American jurisprudence from England. The various nooks and crannies embedded in the RAP make its understanding and application difficult and, at times, frightening. However, states have previously repealed the rule in Shelley’s Case and the doctrine of worthier title, and now more than half of the states have either abolished the RAP altogether or have significantly modified it so that, for practical purposes, it’s effectively abolished.

Bucking this clear trend, the authors at the American Law Institute (ALI) are disturbed by these developments and wish to have the RAP brought back to its full glory, albeit in a slightly modified form. In his article, Professor Scott Andrew Shepard initially reviews the history of the RAP, then explains the ALI’s rationale for why “know-nothing” state legislatures shouldn’t abolish the RAP, then dissects the soft underbelly of the ALI’s argument and finally proposes his own workable solution to the RAP. While it may be difficult to imagine an enjoyable and readable article debating the merits of the RAP, Prof. Shepard has managed ably.

There are several reasons, though they’re mostly misguided, why the ALI authors believe the RAP should be maintained. Two of the reasons Prof. Shepard highlights are that the ALI authors are under the impression that state legislators didn’t seriously discuss policy issues and that such states have betrayed their obligation to protect federal tax revenues. But, recalling my high school civics lessons, the 10th Amendment to the Constitution reserves to state governments all powers not specifically granted by the Constitution to the federal government; therefore, it seems “states’ rights” would include the ability of states to repeal the RAP, and besides, how does the ALI come to pass judgment on legislative decisions of individual states that repeal the sacred RAP? One can only imagine the ALI’s dim view of those states that have passed asset protection statutes, as well as other types of legislation that affect the design and implementation of trusts. Moreover, it’s an unsupportable ALI contention that states are obligated to protect federal tax revenues. Maybe I was in the wrong civics class.

While Prof. Shepard was able to successfully parry the ALI authors, he doesn’t necessarily jump on the repeal bandwagon himself. Rather, Prof. Shepard offers up a concrete package of reforms to the RAP, to make it a workable rule in today’s modern age. I found his article to be well written, well reasoned and very readable. It offers a more sophisticated (and practical) approach to understanding a modified RAP alternative.