Sunday, August 24, 2008

The Rule Against Perpetuities, The Fertile Octogenarian, and The Most Boring Luncheon Speech

We set through a painfully boring luncheon presentation the other day. It was on quantum physics, string theory, and who knows what else. We didn’t pay for the lunch, but we sure earned it.

We decided to come up with the most boring subject for a presentation, one that would even supplant quantum physics. The possibilities included:

The Practical Application of Presentism and Becoming

The Practical Application of Isometrics in an Isolated Isosceles Triangle

A Discourse on Reason and Revelation in the Dark Ages – A True Oxymoron

A Look at Diffusion in an Opaque World

The Econometrics of Regression Analysis in the 15th Century

Metaphysics, Phenomenology and Edmund Husserl

A Theoretical Mass Spectrometry of an Amoeba

The Calculus of a Flea Circus

The Bifurcation of a Dichotomy in Distributed Processes

An Empirical Study of Contested Tender Offers During the Decade of the
1960’s (my actual doctoral dissertation)

It was a tough call, but none of these qualified.

The clear winner was “The Definitive Exposition of The Rule Against Perpetuities and the Fertile Octogenarian” This snoozer has put generations of law students to sleep.

The rule is deceptively simple:

“All transfers of property, real or personal, must vest in lives in being plus 21 years”

The only part of the rule that is seemingly not confusing is the 21 years, but we have to include, if applicable, gestation periods in utero and unborn widows (don’t ask).

The origin of the rule is the 1682 case of the Duke of Norfolk. Without this case, the Duke would have deservedly remained a complete historical nonentity. Instead, we are blest with The Rule Against Perpetuities, which has struck down more common law beneficiaries than the Plague.

You can make any subject interesting by throwing in a little sex, which brings us to the mythical “Fertile Octogenarian.” Since life expectancy in Merrie Olde England was far short of 40, and Viagra did not exist, the thought of an olde geezer getting it on with a fair wench (Cf. Restoration Comedies) was an inspiration for all men, from the highest lord to the lowly, illiterate peasant.

Even in our modern world, the Fertile Octogenarian rarely exists. Tony Randall begat, or is it begot, at 77 and 78. The billionaire Kirk Kerkorian initially hit the jackpot at 82 during his 28 day marriage to Lisa Bonder. But Kirk did not acquire his billions by lying down. Instead he retained the now disgraced and felonious PI Anthony Pellicano to rummage through garbage and prove with retrieved DNA (unknown to the Duke of Norfolk) that the half-billionaire Steve Bing was the biological father of Kira Rose Kirkorian.

Depending on the moment of conception, Kirk may have been cuckolded (another olde English concept) by Steve. Kirk, unlike Sir Paul McCartney, believed in a prenup. If only the Duke of Norfolk could have availed himself of this 20th Century American construct. What is the present value of 28 days in bed? Certain not the £24.3 million Heather Mills earned from Sir Paul. Both Kirk and Paul have learnt that money can’t buy you love.

But I digress to make it interesting.

Even with the Hollywood investments of Bing and Kirkorian, Hollywood cannot immortalize the Rule against Perpetuities. Gidget Gets a Perpetuity just doesn’t cut it.

Senator Sperm Thurmond came close as his youngest child was born when the Senator was a sprite young 74. He was active for over 5 decades on many fronts.

A Harvard Law Professor, W. Barton Leach, wrote the definitive explanation for law students in the 1938 Harvard Law Review. The 30 page “Perpetuities in a Nutshell” is a sure cure for insomnia. No medications are necessary, which should extend your perpetuities period.

The 1938 article was not an unbridled success. He followed 27 years later in the Harvard Law Review with “Perpetuities: The Nutshell Revisited,” which provides yet another treatment for insomnia.

Leach was subsequently befuddled by the issue of sperm banks and perpetuities. We now have to deal with frozen eggs and sperm and fertile octogenarians, who may overlap like Venn diagrams. What a disgusting thought!

Leach has survived in the annals of legal education by allowing female students to speak only on Ladies Day.

Needless to say, Harvard Law School’s reputation and $billion endowment was not based on Leach or perpetuities. Harvard and Yale thrive on legacies, to which the Rule against Perpetuities is inapplicable.

On the opposite coast, the California Supreme Court held in 1961 that a lawyer did not commit malpractice in failing to understand the Rule Against Perpetuities in drafting a will, thereby leaving the cut-off beneficiaries without a legal remedy. Clearly, if the judges did not understand the Rule as students, they were not going to perpetuate it on younger generations.

For further reading on the Rule Against Perpetuities you are referred to the classic 1886 third edition of John Chipman Gray’s Rule Against Perpetuities. The hardbound, which has long exceeded the perpetuities period, is available on line from the discounter Target for only $125.

The ostensible reason for the Rule was a fear of the dead hand of the donor controlling the future.

The 13 Original Colonies achieved independence from England in 1783 in the Treaty of Paris. 26 counties when Ireland threw off the British yoke in 1921. India acquired independence in 1947. Australia, Canada, South Africa, and New Zealand achieved independence before India.

Yet all of these independent countries are still bound by the dead hand of the defunct British Empire. Only Alaska, Idaho, New Jersey, and South Dakota have cut the Gordian Knot (an even older Greek concept) and abrogated the Rule Against Perpetuities.

You now know everything about perpetuities except that which will be tested on the Bar.

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