The Liability Rule, Proprietary Remedies and Body Parts

详细信息    查看全文

• 作者：Remigius N. Nwabueze
• 关键词：Liability rule ; Property rule ; Inalienability rule ; Body parts ; Property in body parts ; Calabresi & Melamed
• 刊名：Liverpool Law Review
• 出版年：2016
• 出版时间：October 2016
• 年：2016
• 卷：37
• 期：3
• 页码：177-203
• 全文大小：511 KB
• 刊物类别：Humanities, Social Sciences and Law
• 刊物主题：Law
  Law
  Criminology & Criminal Justice
  Law Theory and Philosophy
  Philosophy of Law
  Ethics
  
• 出版者：Springer Netherlands
• ISSN：1572-8625
• 卷排序：37

文摘

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.