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86 Tul. L. Rev. 559 (2011-2012)

handle is hein.journals/tulr86 and id is 565 raw text is: Which the Deader Hand? A Counter to the American Law Institute's Proposed Revival of Dying Perpetuities Rules Scott Andrew Shepard* Encouraged pnmarily by a flake m federal estate and gMft t law, more than half of the states have either effectively or entiely abolished ther rules against perpetwties in the past two decades. The American Law Institute, deeply troubled by this development has adopted for its Third Restatement a proposed rule against perpetuities that would essentially prohibit conditional gifts to continue for the benefit ofparties born more than two generations aAer the transferor The ALIk efforts are misguided The rule agaistperpetuities was the product ofa legal, political, and social age very diffemnt than our own. It was designed in large part to addess concerns, such as inalienability conitions, that do not effectively exist in modern law either because the evolution ofproperty structures has dealt with these problems by other means, or because changes in political and social structure have lessened the concerns. While some ofthe old concerns do remain, in modfied form, the Rule Against 1erpeuities provides a poor response to them. It offers a medieval barberd amputation saw where the job demands a modem surgeon&scapel. Though both may save the patient from the ilness, the scalpel will do a more exact and reablejob, with far less collateral damage This Article demonstrates where the ALI went wrong and fashions the scalpelequired to deal with modern iteralions ofdead-handcontrolissues and related problems. I. INTRODUCTION. ................................ ......560 II. A BRIEF HISTORY OF THE RULE AGAINST PERPETUITIES............564 III. THE AMERICAN LAW INSTITUTE'S PROPOSAL FOR REVIVING AND REVISING THE RULE........... ...........568 A. The ProposedRule and theALMhAssertions oflts Superiority over Previous Rules........... ..... 569 B. The ALIl Justificatdons forReiving the RAP atAll......573 * C 2012 Scott Andrew Shepard. Assistant Professor, The John Marshall Law School (Chicago, Illinois). J.D., University of Virginia School of Law; M.A., Vanderbilt University; B.A., University of Richmond. The author is profoundly grateful for the invaluable advice, guidance, suggestions, critiques and support of Professors James Lindgren (Northwestern University School of Law), Jeffrey Stake (Indiana University School of Law), and Danshera Cords (Albany Law School); his colleagues at The John Marshall Law School in Chicago; participants in faculty workshops at Hamline University School of Law, Oklahoma City University School of Law, and Elon University School of Law; and participants in the 2011 Association for Law, Property, and Society Conference and the 2010 Central States Law School Association Conference. He also thanks Jamie Sommer of the JMLS library staff and his research assistants Beckett Homer and Candice Baumgartner for their invaluable assistance. 559

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