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.

EB00000004320K

Available

• The Liability Rule, Proprietary Remedies and Body Parts