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The discussions in two preceding articles are now consolidated to help reformulate the Rule Against Perpetuities and to explain its search for a so-called measuring life in being. Here, it is argued that unsolved problems regarding the Effective Lives and Causal Connection hypotheses are overcome by applying Aristotelian and Avicennian ideas of necessary and proximate causation to Bractonian notions that valid conditions must be annexed to the limitation.

Building upon an earlier article exploring ancient Greek, Roman, Neoplatonic and Avicennian influences upon English trusts, the discussion moves on to consider how—whether wittingly or unwittingly—the Bracton authors subsequently misapplied Roman jurisprudence in their treatise. From this, a hotchpotch of discordant ideas is argued to have laid the foundations for one of the most enthralling issues raised in modern times: Which living persons are relevant to the common law Rule Against Perpetuities and what purpose do they serve? Attorneys advising citizens in nine US states where the common law Rule still applies deserve an answer.

Congress first enacted the generation-skipping transfer (GST) tax in 1976 to protect the estate and gift tax base and to ensure that extraordinary fortunes would bear their fair share of the transfer tax burden. Nearly a half-century into the life of the GST tax, those goals remain unrealized. In recent decades, high-net-worth individuals have succeeded in shifting hundreds of billions of dollars to “dynasty trusts” that—under current law—are poised to escape federal wealth transfer taxation indefinitely. The rise of dynasty trusts reduces the revenue-raising potential of the estate and gift taxes and allows a privileged class to exert vast economic and political power based solely on an accident of birth. This white paper presents a legislative reform agenda designed to reinvigorate the GST tax, stem the rise of dynasty trusts, and bring hundreds of billions of dollars back within the federal transfer tax base. We highlight three flaws in current law that account for the GST tax’s failure: (1) very high exemption amounts; (2) loopholes that allow high-net-worth taxpayers to stuff GST-exempt trusts with assets worth many multiples of the exemption amount; and (3) the lack of any durational limit on dynasty trusts in states that have abolished the rule against perpetuities. Our three-part reform agenda addresses each of these flaws. First, we propose a reduction in the GST exemption from the current level ($11.7 million) to the 2009 level ($3.5 million). A $3.5 million GST exemption still would be higher, in inflation-adjusted terms, than the exemption amount advocated by the Reagan administration. Second, we propose a set of common-sense loophole closers that would prevent high-net-worth taxpayers from stuffing GST-exempt trusts with assets worth far more than the exemption amount. Third, we propose to limit the maximum duration of a trust’s GST exemption to two generations, with an exception that would allow tax-free distributions to beneficiaries who were alive at the time of the trust’s inception. Our plan would shore up the estate and gift tax base and stem the rise of dynasty trusts while allowing more than 99 percent of American families to pass wealth across multiple generations tax-free.

Today’s record levels of economic inequality are infecting our future as the top 0.01% bequest vast wealth to their descendants. With the death of the Rule Against Perpetuities (RAP), this inequality has the potential to harden social class lines not just for a generation or two but forever. Although it may sound implausible, interviews with estate lawyers serving very high net worth clients reveal that some of the wealthiest tier of testators are already exploiting the RAP’s elimination, along with a tax loophole, to establish dynasty trusts that will financially empower their bloodline as long as it continues. Evolutionary biologists will not be surprised by this finding. Recent work in their field shows a universal and powerful human drive for high status descendants — a drive for “quality” progeny so powerful that it appears to trump the usual desire to maximize quantity of offspring. Coupled with the long history of dynastic family wealth in England, this science suggests that today’s wealthiest testators will utilize powerful modern legal institutions (e.g. well-developed laws of contract and trust; deep and efficient capital markets) to forge a new sort of trust that I dub a Dynastic Family Trusts (DFT). These DFTs will be larded with innovative provisions leveraging a founder’s wealth to maximize descendants’ status for generation after generation. For those fearing the pernicious effects of concentrated wealth on democracy and equal opportunity, the rise of the DFT is alarming. Fortunately there is a very easy fix: simply reinstate the Rule Against Perpetuities. Given a race-to-the-bottom dynamic among the states, national legislation from Congress is necessary.

This Article introduces the concept of a property-tax bundle of rights. There i s no property without tax; tax inevitably affects property rights. America has settled into an absolute conception of the property-tax bundle, under which private individuals have absolute power over their property for all time after an initial payment of a flattened wage tax. The project of property, from Blackstone to Coase, has sought alignment of the private and public interests. The absolute conception works well for things. But neither property nor tax theory have checked the unlimited powers granted to the owners of private capital: Money has slipped through the cracks i n our thoughts. This Article traces the evolution of the absolute property-tax bundle through the death of all second taxes on capital and the Rule against Perpetuities. It then contrasts a fiduciary conception of the bundle, which changes tax from a flattened prepaid to a progressive postpaid or spending tax. This removes the right to waste from a property owner’s bundle of rights and thus generalizes an insight credited to Jefferson: The fiduciary conception places all wealth in usufruct for the living. It is a promising idea for a reasonable society in an age of great wealth and great inequality. The fiduciary conception ensures that America’s billionaires will maintain their wealth i n a common pool for the good of all, returning to the alignment of interests sought by liberal theorists at l east since Locke.

The complexities of English land law are primarily the result of the doctrine of estates. To all intents and purposes the doctrine of estates was abolished by the 1925 legislation. The review points raise issues of great importance for understanding law and for law reform. The key to legal development and law reform thus lies in the nature of the sources of law, and how these are perceived. The fact is obvious, but the equally obvious conclusion is not usually drawn: serious law reform should begin with a critical look at the law-making machinery. Contrary to appearances, this is not a paper on the Rule against Perpetuities, but on law reform and legal development. Historically, in the western legal tradition, legislation has been uncommon. This is true, for example, of ancient Rome and England until the 19th century. Theoretically, legislation should be a satisfactory way to make law.

Laws governing religious endowments adjudicated how endowments would be governed and taxed, as well as what actually constituted religion and legitimate religious practice. While the Hindu endowment and Muslim waqf were recognized by colonial law, the tong, the Chinese endowment, in British Malaya and Hong Kong, was seen to go against the British rule against perpetuities. Although exceptions were made for religious charitable trusts in India, colonials in Hong Kong did not deem the tong as charitable or religious, relegating it to the world of family inheritance (private) or business and corporate law. Using both ethnographic and historical evidence, this chapter will show how endowments are at once shaped by secular law but also serve to contest and constitute the religious.

Artists hold their creative works dear: whether paintings, poems, or songs, their human creators treat them with special care and often desire that same care be exercised after death. Directing particular uses of property from the grave can be met with several objections. The objections sound in alarmist responses to “dead hand control” and include the Rule Against Perpetuities, uncertainty, capriciousness, and the repugnancy of restraints on alienation.This Article considers these and other recurring objections in one particular context and with one particular variety of creative works: an author’s unpublished and private letters to her friends. A mechanism for achieving an artist’s restrictions over the use of her creative works after death is introduced in the form of a purpose trust. Purpose trusts are typically utilized by pet owners to ensure the continued care and preservation of their pets after the owner’s death. Purpose trusts are unique in that they lack ascertainable beneficiaries to enforce the trustee’s duties. Many purpose trusts do not qualify as charitable trusts (which can be enforced by the state attorney general’s office). Instead, a private “enforcer” must be provided. Here, a noncharitable purpose trust designed to restrict access to an author’s private correspondence is introduced; a testamentary trust hypothetically created under the terms of the Last Will and Testament of the celebrated American author Willa Cather.

Multi-generational trusts lasting for decades are now colliding with new ways of creating children to result in mismatches of donor intent and beneficiaries. This article will for the first time explore the interpretation of dynasty trusts established either when courts presumed the settlor intended to exclude adoptees as beneficiaries or with express language excluding adoptees. Assisted insemination, in vitro fertilization, the use of gestational carriers, and the abolition of the Rule Against Perpetuities in many jurisdictions have combined to vastly complicate the interpretation of old trusts and the drafting of new ones. If these old presumptions or new language are applied literally to children conceived through assisted reproduction technologies (ART), the result will be to exclude many children the settlor would likely intend to be included, while including others that logically should be omitted. The main thesis of this article is that ART children must be viewed through a different lens than those conceived coitally in order to carry out the trust settlor’s intent. In addition to proposing methods for courts to interpret language in trusts created decades before assisted reproductive techniques, this article will recommend language to be included in the drafting of new trusts.Part II of this article will briefly discuss the common law rationale that class terms such as “children” or “descendants” invariably meant those related by blood, and that, once American states enacted legislation allowing adoptions in the mid-nineteenth century, “adoptees” were not related to the transferor by blood. Part III explores two key changes in the twentieth century: the increase in multi-generational trusts due to alterations in the tax code and the Rule Against Perpetuities, and, more recently, scientific advances that allow embryos to be created and transferred outside the body. Part IV examines current law on whether adoptees are included in class gifts in wills and trusts, and then proposes two solutions to deal with children of assisted reproduction: how to draft language in new trusts, and how to interpret language in decades-old trusts. Part V concludes the article.

For the first time since independence, in a nation founded in large part on the rejection of a fixed nobility determined by birth and perpetuated by inheritance, America is paving the way for the creation of dynastic family wealth. Abolition or evisceration of the Rule Against Perpetuities in over half the states along with the likely repeal of the federal estate tax mean that there soon will be no obstacles to creating large pools of wealth that will insure lavish incomes to lucky heirs for generations without end. The timing of these legal changes could hardly be worse. Marshaling innovative economic data extending back centuries, Thomas Picketty convincingly argues that the relatively egalitarian incomes enjoyed in developed economies from the end of World War II until around 1980 were an aberration and that we are in the process of returning to the historical norm of much greater income and wealth inequality. The driving force is the return to a world in which the rate of return to capital (r) exceeds the growth rate of national income (g) — another historical norm temporarily abrogated during the 20th century. The wealthy hold an extremely high fraction of national wealth, and when returns to that wealth exceed the growth rate of national income, their relative economic power (and all that goes with that) increases proportionally. The main contribution of this article is, unhappily, to explore reasons that this revival of unending inherited wealth is of even greater concern than previously thought. First and foremost, the savings rate to a significant degree will be set by the dead hand control of those creating perpetual dynastic trust. In order to insure that trust assets keep up with income and beneficiary class growth, settlors will need to mandate very high savings rates for trust income. In the long term excessive savings (in excess of the “golden rule” savings rate), perhaps surprisingly, can actually retard the growth of consumption. In the shorter term, in a well-known phenomenon called the “paradox of thrift,” high savings rates can cause recessions, make them more severe, and increase their duration. Second, beneficiaries of dynastic trusts lack the power to dissipate the pools of family wealth that provide their high incomes. Prodigal children’s spending of principal is a powerful force for reducing inequality and increasing socioeconomic mobility. When not barred from doing so, descendants’ ability to sell trust assets to fund even more lavish lifestyles means that they will buy copious goods and services from those with lower incomes and less wealth. Thus perpetual dynastic family wealth thus imposes real social costs. This article recommends the conventional solution to such negative externalities: calibrated taxation of the anti-social behaviors. Instead of reinstating the Rule Against Perpetuities, this article instead suggests imposing perpetuities taxes on dynastic trusts with rates set, as closely as possible, to equal the costs imposed in terms of lower growth; more frequent and sharper business cycles; higher inequality; and lower socioeconomic mobility.

Case note on re St Andrew's (Cheam) Lawn Tennis Club Trust, in which a trust underpinning an unincorporated association was void due to offending the rule against perpetuities. The note suggests that the result is correct, but suggests that Arnold J's interpretation of re Grant's Will Trusts, as well as his application of the law on resulting trusts, are inadequately explained.

Spendthrift trusts which shield assets from creditors have been an ongoing problem for the law since their advent in the nineteenth century. Other, very recent, forms of trust are an even bigger problem: they take the notion of asset protection much farther, allowing settlors to protect not only the beneficiary’s assets, but their own, from creditors; these are called “self-settled asset protection trusts. Moreover, more and more states allow so-called “dynasty trusts” which allow settlors and beneficiaries to maintain assets in trust tax free for generations, overturning long-settled principles of the common law such as the Rule Against Perpetuities. All of these trusts represent bad public policy: they disrupt contracts by allowing debtors to avoid their debts, they disrupt the tort system by denying victims compensation and removing deterrents to high risk behavior, and they withhold vast tax revenues from the public fisc. Most efforts to reform trust law to alleviate the problems of these trusts have been statutory - and unsuccessful, for reasons I explain below. No one has looked to principles in the law itself for a brake on their proliferation. This is a serious oversight because property law itself does offer a solution in the obsure but important doctrine of numerus clausus. Students in common law juridictions do not study this doctrine, and few academics pay attention to it, but it is nonetheless a foundational principle of the law and one which unequivocally bars the types of trusts discussed above.

The writing of culture (ethno-graphy) that has characterized the modern anthropological endeavor has come under critique for measuring the lives of Others according to its own peculiar normative and temporal logics, and then eliding the fact that it is doing so. The same is true of law, where the writing of human action gets figured in ways that always involve some un-ruly combination of legal fact and norm, and the temporal trajectories that are implicit in them. The effect in both modes of knowledge production is a kind of representative impossibility such that the authority claims made by law and ethnography are always exceeded by the actual lives whose measure they take. In this article, I suggest that it is in its confrontation with the lives and times of inheritance in two contexts – in the famous problems posed in Anglo-American law by the Rule Against Perpetuities, and the irresolution of inheritance disputes in Hopi tribal court – that law is most starkly revealed as a kind of ethnography, a writing of culture replete with all the problems of measuring lives that go along with it.

In this article, I propose a model for understanding the concept of ownership that I call the ‘exclusivity model.’ Like many of the contemporary critics of the ‘bundle of rights’ approach to ownership, I insist that ownership is a legal concept with a well-defined structure. I differ from most of them, however, in the model of ownership that I believe to be at work in property law. Most of these critics propose a model of ownership that emphasizes the owner's right to exclude non-owners from the owned thing as the central defining feature of ownership. I call this the ‘boundary approach’ to highlight its fixation on the owner's power to decide who may cross the boundaries of the owned thing. But this, I argue, makes it impossible for the boundary approach to explain adequately the many subsidiary rights in things that coexist with the rights of owners. Indeed, I argue that when we look more closely at the structure of ownership in property law, its central concern is not the exclusion of all non-owners from the owned thing but, rather, the preservation of the owner's position as the exclusive agenda setter for the owned thing. So long as others – whether they be holders of subsidiary property rights or strangers to the property – act in a way that is consistent with the owner's agenda, they pose no threat to the owner's exclusive position as agenda setter.

Despite years of litigation on whether mental health inquiries in bar admission are discriminatory and violate the ADA, courts and state bars still disagree over them. A recent settlement between the DOJ and the Louisiana Supreme Court removing these inquiries from Louisiana’s bar application has some proclaiming mental health questions are now definitively illegal. Since Louisiana had copied a standard form used by twenty-five states, the agreement could have had far-reaching consequences.However, the DOJ’s findings that invalidated mental health inquiries ignored twenty years of established federal and state case law supporting narrowly tailored questions into serious mental illnesses. Moreover, the settlement lacks legal precedential effect, and in practical terms will not influence other states to settle given the weaknesses of the DOJ’s ADA enforcement scheme in the bar admittance context. Thus, in the likely case this issue is litigated again, the settlement is unlikely to have much influence.While the DOJ’s arguments were weak, changes to mental health questioning are still necessary as a matter of policy. In contrast to scholarship calling for a unilateral ban on such inquiries, I advocate for questions into mental illnesses that may excuse prior misconduct or current ailments affecting the ability to practice law. Also, bars must clarify how they use such mental health information, particularly that treatment will only serve as a mitigating factor to excuse past misbehavior or present illnesses. Finally, although narrow inquiries into serious mental diseases are permissible, they should be removed to encourage treatment for all disorders.

In traditional Asian societies, economic activities were always embedded with political and religious forces under the protective disguise of such institutions as communal temples and lineage groups. In India and China, for instance, it was very common that wealth was retained and accumulated in the form of religious endowments, and in the names of deceased ancestors or patron deities. Business activities, therefore, was a segment of the complicated web of kinship, ethnicity, and personal relations. Nevertheless, with the rise of British colonialism starting from the 19th century, the presence of British legal system in Asia threatened the material interests of many of these endowments. Starting from the 1850s, the British courts have passed down as legal precedents that these “perpetual trusts” violated the British Rule against perpetuities. Nevertheless, the Hindu religious endowment was granted exemption to the Rule whereas the Chinese Tong was not – as the British courts ruled that endowments held in the name of Tong did not meet the test of being “religious” or “charitable.” This verdict was detrimental to traditional Chinese business practices, as Tong, being a common unit of share-holding in business investments, was not entitled to accumulate, transfer and inherit business shares. The gap between these decisions highlights the differences in the social and historical circumstances in which the respective British policies were formulated.

The author considers the proposal of the Law Commission that the Rule against Perpetuities should be amended rather than abolished and emphasises the need for a balance between the freedom of the current generation and the freedom of future generations to control property. The article draws attention to the experience of Canada and the United States and suggests that experience undermines the Rule's economic rationale and that the Law Commission should consider recommending the Rule's abolition.

Trust-like arrangements are appearing in civil law jurisdictions at an increasing rate. Two or three decades ago, such a development would have been unthinkable. But few, if any, of the new arrangements are true trusts, that is, trusts as the common lawyer would recognize them. These civilian arrangements are diluting the trust. For example, the Draft EU Directive on Protected Funds, which appeared in 2009, does not authorize the trust but rather what we might the “trust-lite.” This paper considers some reasons for the spread of these trust-like devices and discusses possible implications for common-law trusts.

Legal conflicts cause tensions between Islamic law and the common law. One such conflict exists between the rule against perpetuities in trusts and mandatory perpetuities in family Waqfs. This conflict is a prime example of a direct clash of legal philosophies. To appreciate the full extent of this conflict, this article analyses three seminal cases from colonial times, a period in which English common law judges had the opportunity to adjudicate on Islamic legal matters in colonial dominions where Islamic law prevailed. The cases will help gauge how receptive the common law is to Islamic legal doctrines that clash with it.

This essay argues that the myriad property doctrines and rules are answers to several consistent legal questions, and that these questions provide a useful framework for teaching Property law. The problem with Property Law courses is that we cover a slew of topics in which we load students up with a wide variety of (often conflicting) answers to these questions without ever revealing that all of the doctrines and rules are responses to the same set of questions. The proposed framework offers the questions as reference points for navigating the sea of common law Property doctrines and rules. A student still must deal with the treacherous straits of the Rule Against Perpetuities and similar difficulties. However, using the framework of questions she can always look up to see key questions and thereby orient and guide herself to an answer (or set of possible answers).

Proposes that traditional estate planning is only a small subset of a life plan, and every estate plan should be designed to deal with multigenerational issues and asset protection. Six areas exist that are often forgotten but need to be discussed when creating a life plan. Firearms, Digital Assets, Asset Protection, Life Planning, Controlling from the Grave, and Pets are extremely important in today’s society to estate planning. If an Estate Planner forgets those points when planning an estate, it can lead to much heartache and worry for the loved ones of clients.

“Between facts and norms” is how Jurgen Habermas (1998) describes the mediating place that law occupies and by which it exercises its unique communicative force in state-level societies. But law is not the only discourse that stakes an authorizing claim to that mediating ground. Discourses of tradition, for example, have increasingly been turned to in current indigenous politics as a way to insure that contemporary native governance systems reflect the integration of their particular cultural norms with the vicissitudes of everyday native life in the 21st century. At the same time, both law and tradition, in managing this in-between place, have come under heavy critique for making authoritative representations that are always exceeded by the actual lives and times whose measure they take. This paper is an examination of these claims and critiques as they unfold in the discourses of law and tradition proffered in inheritance dispute hearings before the Hopi Tribal Court between the mid 1990s and 2000s. More specifically I will argue for understanding the authority that law and tradition generate between facts in norms in terms of what I call their perpetuity – that spatio-temporal framing, observable in the details of their actual discourses, by which both law and tradition are alternatively invoked to authoritatively represent the relevant issues of a case at hand. As I show, to the extent that in the Hopi court’s Anglo-style processes the authority of law or tradition are invoked as competing to occupy exclusively the mediating time-space between facts and norms, the quality of law and tradition’s perpetuity can also be understood as a kind of jurisdiction, or juris-diction: discourses of law that call forth the force and limits of legal authority. In conclusion, I will suggest the possibility for extending these understandings beyond the Hopi context by exploring the problems that inheritance disputes generally, and the Rule Against Perpetuities in particular, have long posed for Anglo-American law, suggesting that perpetuities operate at the very heart of that which stands as (and against) rule.

England, like almost all other common law jurisdictions, has until now retained a so-called 'rule against perpetuities'1 limiting the period of time for which the identity of persons unconditionally entitled to property in trust funds is permitted by law to remain unascertainable. In a recent Consultation Paper,2 the Law Commission has expressed the provisional view that the rule should be either abolished or reformed.3 The Commission has rejected the options of either leaving the rule unamended or replacing it with a new rule; but it has not yet reached a preference between abolition and reform.4 This article will consider the options.

* The reformed rule should be made applicable to dispositions without any requirement of first applying the common law rule. * The principle of wait-and-see should be retained, but there is much to be said for following the US example of abandoning perpetuity periods based on lives-in-being in favour of a fixed-period rule. * Any reforms to the operation of the rule should have retrospective effect subject to a saving for vested interests acquired as a result of the operation of the unreformed rule. * No general cy-pres jurisdiction should be created in order to save dispositions which fail to vest in time. * The rule against perpetuities should cease to apply to certain types of disposition outside the policy of the rule, most importantly all pension schemes. But the rule should continue to apply to charitable trusts. And, while some specific reform of the application of the rule in certain commercial contexts is required, there should be no general exemption of commercial transactions from its operation.

Recent years have seen a movement in the states to pass legislation repealing or modifying the Rule Against Perpetuities in order to allow transferors to create trusts that can last forever or for several centuries. At its 2010 annual meeting, the American Law Institute took the position that the perpetual-trust movement is ill advised. The ALI’s case was stated in the Restatement (Third) of Property: Wills and Other Donative Transfers (Tent. Draft No. 6, Approved 2010). This short essay reports on the case for retaining a rule that curtails dead-hand control.

This article presents a recently discovered and previously unpublished manuscript written by John H. Watson, M.D., and annotated by Professor Stephen Alton. Dr. Watson’s manuscript records an extended conversation that took place between the good doctor and his great friend, the renowned consulting detective Mr. Sherlock Holmes, regarding issues of gratuitous transfers of property – issues involving inheritances, wills, and trusts – that have arisen in some of the great cases solved by Mr. Holmes. This felicitous discovery confirms something that Professor Alton has long known: these gratuitous transfer issues permeate many of these adventures. Often, the action in the case occurs because of the desire of the wrong-doer to come into an inheritance, a bequest, or the present possession of an estate in land more quickly – perhaps by dispatching the intervening heir, beneficiary, or life tenant. Professor Alton has annotated this manuscript, providing extensive analysis of these issues and citations to relevant, contemporary authority in his footnotes.

This article raises some of the many questions that exits under current law concerning cryopreserved sperm and probate law that need to be addressed by updating state law. The article discusses issues such as human tissue being treated as property, the changes in the judicial treatment of cryopreserved sperm, and the issue of whether it constitutes property are addressed in this article on marital property law and its effects on disposal of a decedent’s cryopreserved sperm. The comment also discusses the issues surrounding determination of who the child belongs to, what type of visitation rights and adoption rights apply and the potential issues when the "Rule Against Perpetuities" also comes into effect.

The rules of law governing estates in land and future interests are boiled down as much as possible, but hopefully not more so.

As EVERY FIRST-YEAR LAW STUDENT soon learns, questions of law are very different from questions of fact. When one is asked, "What are the facts of this case?" it doesn't do to talk about strict liability, or consideration, or the rule against perpetuities. One needs to describe what happened in the world, what events are at issue in this lawsuit. When asked about questions of law, the field of inquiry shifts. One discusses the legal standards to be applied to the case and how they are to be understood, and one stops discussing this particular car accident or the particular words of this idiosyncratic will. Statements of fact are descriptions of events and activities in the world; statements of law are interpretations of legal texts and legal rules. The separation of questions of law and questions of fact has an even greater role outside the classroom. Much of the institutional framework of courts hinges on the distinction. In ajury trial, thejury decides questions of fact while thejudge instructs on matters of law. The division of labor between judge and jury is premised entirely on being able to sort out the two sorts of issues.' By being able to decide the facts of a particular case, the jury retains a substantial check on the powers of judges, or at least so the theory goes.2 Keeping fact and law separate is a political strategy designed to minimize the abuse of power. The division of labor between trial and appeals courts is also premised on a sharp distinction between law and fact. Answers to questions of fact are considered to be virtually fixed at trial, and only issues of law can be raised on appeal.3 Appeals courts, because they do not have the parties present and do not have an opportunity to hear all the evidence presented orally, are thought to be poorly situated to work out what happened and are supposed to limit their review to questions of law in which they have special expertise. Here, too, the law/fact distinction marks out the institutional boundaries of different legal actors, separating the role of the appeals court judge from the role of the trial judge or jury. And the importance of the law/fact distinction does not end there. In the determination of what shall count as precedent, judgments of law carry weight for future cases; judgments of fact generally do not. The idea here is that questions of law transcend particular decisions, while questions of fact are idiosyn

The common law rule against perpetuities maintained alienation of property by voiding interests in property that did not vest within a life in being at the creation of the interest plus twenty-one years. The rule was applied strictly, often producing harsh results. The courts used a what-might-happen test to strike down nonvested interests that might not have vested in a timely manner. During the last half-century, many legislatures have softened the application of the rule against perpetuities by enacting wait-and-see provisions, which require courts to decide cases based on the facts as they actually developed, and reformation, which allowed some nonvested interests to be reformed to save them from invalidity. This paper describes the common law rule. Then it traces the modern developments, including promulgation of the widely adopted Uniform Statutory Rule Against Perpetuities, which includes an alternate 90 year fixed wait-and-see period to be applied in place of the common law's lives in being plus twenty-one years. The paper continues by exploring the policies which underlie the rule against perpetuities. Then, after finding that there is no significant movement to repeal the rule except for trusts, it is established that proposals for that federal law, including federal transfer taxes, cannot and should not be used to implement the policies served by the rule itself. There is a continuing need for state rules against perpetuities. The paper proposes that the rule be modified to make it more understandable and easier to apply. The proposed rule would replace lives in being plus twenty-one years with a fixed term of years. This would eliminate most of the difficulties encountered in application of the rule. Wait-and-see and reformation are part of the proposed rule. The proposed rule provides for determination of valid interests at the end of the fixed term of year Rule and contains a definition of "vested" to enable judges and attorneys to apply the rule in cases which will arise many years in the future.

This Article presents the first empirical study of the domestic jurisdictional competition for trust funds. To allow donors to exploit a loophole in the federal estate tax, since 1986 a host of states have abolished the Rule Against Perpetuities as applied to interests in trust. To allow individuals to shield assets from creditors, since 1997 a handful of states have validated self-settled asset protection trusts. Based on reports to federal banking authorities, we find that, on average, through 2003 a state's abolition of the Rule increased its reported trust assets by $6 billion (a 20% increase) and increased its average trust account size by $200,000. By contrast, our assessment of validating self-settled asset protection trusts yielded indeterminate results. Our perpetuities findings imply that roughly $100 billion in trust funds have moved to take advantage of the abolition of the Rule. Interestingly, states that levied an income tax on trust funds attracted from out of state experienced no observable increase in trust business after abolishing the Rule. Because this finding implies that abolishing the Rule does not directly increase a state's tax revenue, it bears on the study of jurisdictional competition. In spite of the lack of direct tax revenue from attracting trust business, the jurisdictional competition for trust funds is patently real and intense. Our findings also speak to unresolved issues of policy concerning state property law and federal tax law.

Cy Fox often forgets that he was supposed to be “only” an academic. For three decades, as he helped thousands of law students through the intricacies of the Rule in Shelley’s Case, or watched them calculate a “life in being plus twenty one years” for the Rule Against Perpetuities, he failed to appreciate that law school was supposed to be an amalgam of theory and confusion, not the place for his teaching law students about helping real people solve real life problems.

Contemporary developments in reproductive technology have generated extensive debate among lawyers, ethicists, legislators, the media, and the public. Concern has intensified recently in light of claimed attempts to clone human beings. One implication of the new reproductive technologies upon which few commentators have focused is their effect on the Rule Against Perpetuities. For example, what impact should the possible existence of frozen sperm or frozen embryos have upon the execution of wills and implementation of the Rule? This Article provides a thorough analysis of the Rule Against Perpetuities, its policies, and reformulations of the Rule. It further describes the serious problems that the new reproductive technologies pose for the viability of the Rule. Finally, it recommends reforms designed to protect the policy interests served by the Rule while addressing the implications of the new reproductive technologies.

"Property rights serve human values." State v. Shack. Every law student needs to emerge from the crucible of first-year property law with a clear understanding that when "O conveys Blackacre to A for life, remainder to B and his heirs," O has created a life estate in A and a future interest, a vested remainder, in B; or that when "O conveys Blackacre to A and his heirs, but if A ever builds a liquor store on Blackacre, then to B," O has created a fee simple subject to executory limitation and has violated the common law rule against perpetuities. But, every student also needs to learn that property rights serve human values if she is to become a lawyer who understands and appreciates that the law must serve everyone: persons of color, the poor, those of every gender and sexual orientation, and must also be called upon to protect the environment. "O" may be African-American, "A" may be gay and "B" may be living in poverty, but all are affected by property law decisions. In this article, I describe the cases and materials I use in my first-year property class to introduce students to what I hope will be a career-long awareness of the relationship between property law and social justice.

This article suggests the policy and social justifications against dead hand control far outweigh transfer tax advantages provided to wealthy settlors and the potential revenue expected to be generated by the abolishment legislation. The abolishment legislation may be readily adopted by other jurisdictions in light of the legislatures' failure to recognize the consequences of unlimited dead hand control.This article recognizes that the Rule is complicated, and Rule violations present harsh consequences for practitioners and their clients. In fact, violations of the Rule, due to its complexity, have been held as an attorney error, not subject to a malpractice claim. The complexities of the Rule and the harsh consequences for the violations thereof, initiated and resulted in the variations of reform.A brief discussion of the origin of the Rule, basic elements and the modern reform, are useful for a fuller understanding of this article's critique of the abolishment legislation. After the brief discussion of the Rule and reform, this article categorizes the abolishment legislation as the 1998 abolishment legislation; the additional-incentive jurisdictions and the forerunners of abolishment. After categorizing the abolishment legislation, this article compares the arguments against the abolishment legislation to its advantages. Furthermore, this article emphasizes that the abolishment legislation has ignored dead hand control in favor of providing wealthy settlors with an estate planning tool to minimize federal transfer taxes. In conclusion, this article suggests that in light of the consequences of dead hand control the abolishment legislation should be stopped. Failure to stop the trend among jurisdictions could result in the Federal government curtailing dead hand control.

Trust and estate law continues to evolve. Factors driving change include an increase in life expectancy, numerous advances in medical technology, the increased geographic mobility of individuals, the growing use of revocable trusts as substitutes, the trend to abolish the rule against perpetuities, and restrictions on the ability of creditors to reach self-settled trusts. This article examines some of these trends as well as other patterns that will affect practicing trust and estate law in the near and distant future. Topics addressed in the article include retirement funding, physical and mental health issues, revocable trusts, uniform state rules, ante-mortem probate, estate and gift tax reform, modernization of trust law, nontraditional families, estate administration, and nonprobate assets.

A look at selected recent cases, rulings and regulations, literature, and legislation.

The venerable Rule Against Perpetuities has been plaguing property lawyers for over 300 years. Oil and gas attorneys need to know the types of transactions which are covered by the Rule because as John Chipman Gray once said, the Rule is to be remorselessly applied to void interests which vest or fail to vest within a life in being plus twenty one years. The author gives the oil and gas attorney a short historical view of the development of the Rule, followed by the generally accepted reasons that underlie the Rule's long life. The author then analyzes the major types of transactions which have run into Rule difficulties. Finally, the author suggests that while a number of authorities have argued that the Rule should not apply to 'commercial' transactions, such as many oil and gas transactions, he concludes that the Rule should be applied in those situations where the purpose of the Rule in preventing remotely vesting interests from taking mineral estates out of the stream of commerce will be achieved.

A look at selected recent cases, rulings and regulations, literature, and legislation.