John Chipman Gray, Legal Formalism, and the Transformation of Perpetuities Law
26 Pages Posted: 11 Sep 2008
Date Written: May 1982
This article provides a revised history of the development of future interests in English and American law that ties their development into social policy rather than abstract concepts of medieval law. The social policy involves the judiciary's centuries long struggle to prevent large landholders from controlling their wealth long after their death. The judiciary's goal was to prevent the aristocracy and landed elite from tying their extensive holdings to their families in perpetuity. The article depicts the common law's famous Rule Against Perpetuities as only the most recent attempt to accomplish this goal and shows it really was more generous to dead hand control than previous common law limitations.
This article also shows how the current image of future interest law is a product of the successful effort of legal scholars in England and America to reshape the corpus of future interest law according to the tenets of legal formalism the late-nineteenth century's dominant jurisprudence. John Chipman Gray's classic treatise, The Rule Against Perpetuities, was most influential book in this effort.
Finally, this article portrays current controversy in American property law as the product of the current movement away from formalism to a jurisprudence of functionalism and pragmatism. The disputes discussed include the reform of perpetuities law, the cy pres doctrine, and the interpretation of deeds.
Keywords: legal history, perpetuities, formalism, classical legal thought, future interests, conveyancing, property law, wills, trusts, executory interests, remainders
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