Seven days...

With just days until the bar exam, I'm going back over some of the really tough subjects, including the Rule Against Perpetuities. The text of the original rule is nearly unintelligible: No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. WTF were the British thinking when they came up with that mess? A more relevant question, perhaps, is why the hell was it later adopted into American jurisprudence?

Application of the RAP has really screwed over some attorneys in the past. The greatest problem with the rule is that the courts don't apply common sense or even reality to RAP cases. One of the more ridiculous examples is the "Fertile Octogenarian" rule, which presumes that anyone, even an octogenarian (that is, a person between 80 and 90 years of age) can parent a child, regardless of health or gender. RAP cases have resulted in many colorful examples including the "unborn widow," the "slothful executor," "the magical gravel pit," "the slaughter of the innocent" and "the war that never ends." Don't ask me what they mean - I don't know, don't care and am willing to miss any related questions on the MBE.

Fortunately, in its 2007 session, the Arkansas Legislature adopted the Uniform Statutory Rule Against Perpetutities which takes an easier wait-and-see approach along with application of the cy pres doctrine to take some pressure off lawyers who aren't blessed with omniscience.

Unfortunately, Arkansas courts can only apply the new RAP prospectively - meaning the crappy old RAP applies to any nonvested interests created before 2007. That means, of course, that the old RAP is fair game for testing on the bar exam this summer. While that doesn't help me out on the bar exam, I can hope that Arkansas will adopt the California approach to malpractice with regard to the old RAP. In Lucas v. Hamm, the California Supreme Court held that it was not malpractice for an attorney to not understand the Rule Against Perpetuities! That's how bad the old rule is!

Anyway, I best be getting back to Property multiple choice questions...only got 7/18 correct in that last practice set and that's not quite going to cut it on the MBE.