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Class 15 – 3/3/17

Future Interests III: Rule Against Perpetuities

• Rules Furthering Marketability, 303-307
• Common Law Rule, 307-311 (Skip Class gifts 311-312)
• Problems, 312-314
• Perpetuity Reform Movement, 328-332 (skim)
• Texas Rule Against Perpetuity

Note: Nothing from this lecture, including The Rule Against Perpetuities, will be tested on the final examination. In other words, this is a wrap for RAP. But you will need to know it for the bar exam. Learn it now, and make your life much easier in two years (learning it for the first time out of context is much tougher the month before the bar).

The lecture notes are here.

Thankfully, Texas has abolished the Rule in Shelley’s case, the Doctrine of Worthier Title, and the Rule Forbidding a Remainder in the Grantor’s Heirs. This is the Texas Rule Against Perpetuities.

RULE AGAINST PERPETUITIES. The rule against perpetuities applies to trusts other than charitable trusts. Accordingly, an interest is not good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of the interest, plus a period of gestation. Any interest in a trust may, however, be reformed or construed to the extent and as provided by Section 5.043.

In case you were wondering, the youngest mother on record is five-years old. And in a bizarre case, a man adopted his girlfriend to protect his assets.

And, if you hate the Rule against Perpetuities, blame this guy. Orlando Bridgeman, whose crazy conveyances raised the possibility of perpetuity, which led to the creation of the Rule Against Perpetuities.Don’t blame me. Blame Orlando. Note: The Rule Against Perpetuities will not be tested on the final examination. In other words, this is a wrap for RAP.

On Friday, February 24, I was a guest on Making Money with Charles Payne on the Fox Business Network to discuss sanctuary cities. I don’t think I gave the host the answer he was looking for. He asked me how could it be that the Mayor of San Francisco could resist the President with respect to enforcing federal policy. I explained the doctrine of commandeering, citing Justice Scalia’s opinion in Printz, and gave the example of local sheriffs refusing to enforce federal gun control laws. I hope I got through to a few people in the audience–federalism exists, even if it serves liberal goals.

In its letter urging the Court to resolve Gloucester County v. GG on the merits, the ACLU notes that even though the “Dear Colleague” letter has been withdrawn, the Department of Education’s website still hosts “several additional guidance documents explaining that transgender students are protected by Title IX and should generally be treated consistently with their gender identity.”

2 The Department of Education has also not withdrawn several additional guidance documents explaining that transgender students are protected by Title IX and should generally be treated consistently with their gender identity. See e.g., OCR, Questions & Answers on Title IX and Sexual Violence (Apr. 29, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (“Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation); OCR, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/faqs-title-ix-single-sex-201412.pdf (“Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”).

We have seen this argument before. In an ill-fated attempt to stop the removal of a DACA recipient, an all-start team of lawyers actually cited a Department of Homeland Security FAQ document as proof that their client indeed had lawful presence–even though Secretary Napolitano’s 2012 Memorandum made no reference to “lawful presence.”

As I noted in my article, Government by Blog Post, D.D.C. held that agencies cannot rely on FAQs as the source of legal authority:

A sole FAQ by itself cannot be the source of legal authority. In a different case, a federal court ruled that the CMS could not rely on an FAQ on their blog (FAQ 33) as the basis to support its modification of the method used for calculating hospital-specific supplemental Medicaid payment limits. The court found that because FAQ 33 was the “sole authority” for the government’s decision, it must be set aside as unlawful.

In any event, I suspect the two cited FAQs will now be promptly deleted as they are inconsistent with the agency’s latest position.

As Petitioner notes, the fact that these informal documents can be posted and withdrawn with the click of a mouse is further reason not to afford them Auer deference.

The fact that a new administration could unilaterally rescind the Ferg-Cadima letter underscores why it should not have received “controlling” deference in the first place.

Stay tuned.

Gloucester County urged the Court to delay arguing the case, to permit the Solicitor General to file a brief. The petitioner’s letter states:

Argument should be postponed until at least the April sitting.

1. Raines v. Byrd (1996) involved the Line Item Veto Act. This bill had a direct appeal from D.D.C. D.D.C resolved the case on April 10, and the Court noted probably jurisdiction two weeks later on April 23. It was argued on May 27, and decided on June 26.

In my opinion, it is both unnecessary and profoundly unwise for the Court to order expedited briefing of the important questions raised by the petition for certiorari and application for a writ of habeas corpus. Even if the majority were right that this petition squarely presents substantial constitutional questions about the power of Congress to limit this Court’s jurisdiction, our consideration of them surely should be undertaken with the utmost deliberation, rather than unseemly haste. Accordingly, I respectfully dissent from the entry of the foregoing order.

The case was resolved on June 28–two days after Raines v. Byrd. (That was a busy June!).

3. Swidler & Berlin v. U.S. (1998) involved the Independent Counsel’s request for handwritten notes from Vince Foster’s attorney. The D.C. Circuit found that the privilege does not survive death. Certiorari was filed on December 31, 1997, and cert was granted on March 30, 1998. The case was set for expedited arguments on June 8 (by Brett Kavanaugh), and decided on June 25. The New York Times reported that “the High Court agreed to hear the case unusually quickly.”

I am not versed with the history of this case, but a footnote in the Petitioner’s reply brief states:

Independent Counsel contends that this Court should deny certiorari to speed the conclusion of his investigations. It appears, however, that his investigations will not end until long after this Court, if it determines to review this case, decides it. Petitioners would not object to expedited treatment for this case.

I think this uber-expedited argument may have something to do with the now-defunct Independent Counsel statute.

Another option would be to hold a special August or September sitting, like the Court did with Citizens United. This issue will be driven entirely by what the Justices want to do. In any event, whether the case is argued in April, May, or August, Justice Gorsuch will be on the bench.

Miguel Estrada proved his mettle today. In the morning, during the closing moments of arguments in Coventry Health Care of Mo. v. Nevils, he trolled the Chief Justice about his saving construction in NFIB v. Sebelius.

In the afternoon, he rebuffed reports that he was in contention for the Solicitor General seat with glaring dig at Chuck Schumer:

If Miguel tweaks Trump’s speech over dinner, he will have hit all three branches in 24 hours!