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?

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