The Liability Rule, proprietary remedies and body parts

Sometimes courts and commentators disavow a proprietary approach to excised body parts in the belief that non-proprietary remedies are adequate to the task. A belief of this sort, this type of conceptual resistance to the application of property law to body parts, is allegedly captured in the compendious expression known as the liability rule. Moore v Regents of the University of California clearly illustrates this type of opposition. Some recent scholarship has also tried to ground this sort of exclusive non-proprietary approach to body parts in the liability rule component of the analytical framework developed by Calabresi and Melamed. This piece interrogates the idea that nonproprietary causes of action should exclusively furnish the applicable theory of liability in relation to body parts; it suggests an understanding of the theoretical framework of Calabresi and Melamed which facilitates a proprietary approach to body parts along with current non-proprietary approaches. I argue that property, liability and inalienability rules basically serve the same purpose (protection of an entitlement in the nature of a property interest) and that the difference amongst them is one of degree rather than nature; also, none of the triad applies separately and independently of one another. Thus, I suggest that the liability rule is not essentially non-proprietary and could be used to protect a proprietary entitlement. I tested my understanding of Calabresi and Melamed’s framework against a case that involved damaged kidney in order to show the difference the framework, as conceived by me, could make to the remedial fortunes of a claimant in body parts’ litigation

Legal approaches to the burial rights of a surviving wife

Article by Dr Remigius N. Nwabueze (City Solicitors' Educational Trust Lecturer in Property Law at the School of Law, University of Southampton; Leverhulme Research Fellow; Visiting Fellow of the Institute of Advanced Legal Studies) published in Amicus Curiae - Journal of the Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London

Privacy protection against physical intrusion: development of a pure intrusion tort in England and Wales

This article argues that intrusion into privacy is not comprehensively protected in England and Wales despite the availability of the cause of action for misuse of private information. Therefore, the author argues for the development of pure intrusion tort category in England and Wales

The Welsh transplant incident

Hughes and Stuart’s shocking and unexpected deaths from the transplant treatments they received at Cardiff’s University Hospital of Wales could, in Lord Denning’s terminology, be described as ‘a most extraordinary chapter of accidents’. As Hughes and Stuart’s transplant treatments were based on expanded criteria donor kidneys, their deaths underscore not only the perennial problem of organ shortage in England and Wales which necessitates the clinical use of ‘high risk’ organs; but also, their deaths invite a re-examination of some of the ethical and legal issues involved in transplantation with expanded criteria donor organs. Being incomparable in calamity and rarity, the Welsh transplant incident is bound to raise novel issues of first impression in negligence, issues that this essay attempts to identify and analyse

Illegality and trusts: trusts-creating primary transactions and unlawful ulterior purposes

I argue that the role illegality actually plays in the law of trusts is often exaggerated. I hypothesize that a properly constituted trust, which arises from the primary feature of a transaction between the parties, should (and would) be enforced despite some credible evidence that the trust has an illegal ulterior purpose. Similarly, a trust that arises by operation of law from a given primary feature of a transaction would be enforced notwithstanding an underlying illegality. I argue that pre-Patel, and potentially post-Patel, illegality obviated the enforcement of a trust only where the trust directly violated the law or public policy. In other words, the illegality principle or Patel’s trio of considerations can only be applied to trusts where a given trust is directly opposed to law or public policy, as distinct from the trust being merely impugned for having some ulterior unlawful motives

Regulation of body parts: understanding bodily parts as a duplex: regulation of bodily parts

The current law in England and Wales adopts a no-property approach to cadavers and separated bodily parts; paradoxically, it affords proprietary protection to tissue users at the expense of tissue sources. Non-proprietary frameworks hardly offer effective legal redress to tissue sources. Potentially, the law could offer tissue sources a mix of proprietary and non-proprietary remedies. Drawing from the work of the famous anthropologist, Marilyn Strathern, I argue that such a flexible and eclectic approach might be facilitated by the concept of duplex, an analytical tool that promotes divergent thinking and paradoxical conceptions of a given issue. I argue that while the no-property rule reflects a duplex on bodily parts, the duplex is narrow and ought to be conceptualised more broadly to cover the claims of tissue sources

Orphaned transplantable organs: law, ethics and ownership

The legal status of an organ, in the period between its extraction from the body of a donor and its implantation in the body of a recipient, is unclear. In that period, the excised organ might be said to be orphaned because of its ambiguous custodial and proprietary status, and a host of activities might take place which could jeopardise its safety or viability for transplantation. For instance, what happens if the organ was lost or damaged in transit? Not inconceivably, a thief might snatch the organ from the possession of the transplant team; a transplant surgeon could use the organ for the treatment of their relative or close friend, a celebrity, or an influential political figure, instead of transplanting the organ into the properly selected and designated recipient contrary to the established allocation criteria. The excised organ might be damaged maliciously by a third party, say, an enemy of the proposed recipient who was bent on frustrating the recipient’s only means of receiving a life-saving treatment. Further, a live donor might change their mind on donation to the potential recipient after the organ has already been extracted.While these scenarios raise an interesting mix of legal, ethical, political and social questions, a fundamental enquiry that permeates the whole gamut of issues engendered by the hypothetical above is the question of ownership and proprietary entitlement to an excised (orphaned) organ. Accordingly, this article interrogates the question of proprietary control or ownership of an orphaned organ