Hacker News Reader

Comment by bradleyjg | Hacker News Reader

The development of no small part of English common law was the result of a multi-century cat and mouse game between wealthy landowners that wanted to keep their property in the family "forever" and everyone else that didn't want to have the dead hand of the past control substantial portions of the country's productive assets. Two groups in particular that didn't like to see assets locked away were dissolute heirs and their creditors.

View on HN

See: https://wikipedia.org/wiki/Rule_against_perpetuities

Patent attorney? Me too. Have you read the malpractice case in California that basically says that you can't be found to have practiced malpractice for violating the RAP because its too convoluted?

From that article: "It is notoriously difficult to properly apply: in 1961, the Supreme Court of California ruled that it was not legal malpractice for an attorney to draft a will that inadvertently violated the rule." (Emph added)

Presumably California would look less kindly on someone saying to their lawyer, "I want to lock up this money forever", and the lawyer in response saying, "Yes, I will draft your will so that the money will only ever be spent in the manner you command."

RAP has been abolished in a number of US states I believe, where dynastic trusts can now persist "forever".

Related, I remember reading that Jefferson worked hard to prevent inheritance in fee tail from becoming established in our republic.

In the current political climate I wonder if fee tail could be brought back. The predominate opinion among economists and, especially, legal scholars on the far right seems to be in favor of removing any and all limitations on the enforceability of contracts and trusts, and I could see the far right in many states embrace a return of fee tail as it would be easy sell to their political base as a way to preserve property in the family.

> In the current political climate I wonder if fee tail could be brought back

Unwinding capitalism as overly progressive and retreating to feudalism seems entirely in line with the politics of the present US ruling faction, and bringing back fee tail would be a natural step toward that.

Feudalism or fascism? Nationalism? check. Populist? check. Appeals to "good ol days of glory"? Check.

https://www.quora.com/What-is-the-difference-between-feudali...

Much of the world seems to be retreating to feudalism. China seems to be accelerating in this direction and Russia is already there.

Land just isn't as important as it used to be. So I doubt you'd see a strong movement to bring back fee tail. On the other hand, IIRC from law school, several states have arleady abolished the rule against perpetutities and allow for perpetual trusts, so long as the trustees have the freedom to invest the trust res as they see fit. In other words, the trust can't be required to hold on to a specific piece of real property, but it can keep principal out of the hands of heirs and only distribute income essentially forever.

Reply on news.ycombinator.com