Execution against Residential Immovable Property in terms of High Court Rule 46A

This article provides an overview of and commentary on High Court Rule 46A, which deals with the procedural rules for executing a judgment debt against residential immovable property. Rule 46A focusses on two main aspects: determining if it is justified to sell the debtor’s home in execution and, if a sale is ordered, setting a reserve price at which the property is to be auctioned. Therefore, this article analyses the provisions of rule 46A that pertain to these two components, which also serve as two layers of protection for a debtor facing the loss of his or her home.

Regulation of bodily parts: understanding bodily parts as a duplex

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.

The Truth About Property Rules: Some Obstacles to the Economic Analysis of Remedies

2 Washington University Jurisprudence Review 39 (2010)Property Rules, as famously described by Calabresi and Melamed, are remedial rules that place a prohibitively high penalty on violations of rights. This essay examines two aspects of property rules. In each case, the form of the rule is critically important. The first question addressed is the capacity of property rules to affect behavior that takes place outside the context of litigation. Most economic analysis assumes that when a right is protected by a property rule, the property rule will guide private decisionmaking at the time of a contemplated violation, and possibly before that time. Yet, to have this effect, property rules (and liability rules) must be embodied in a set of determinate legal rules defining not only the penalty imposed on violation, but also the entitlements protected and the conditions on which the property-rule remedy is available. Property rules, in other words, must be rules.In fact, "true property rules" that meet this description are scarce. This casts some doubt on the predictions made in literature on the subject. Theory and doctrine may or may not be reconcilable, depending on the desirability and feasibility of determinate rules in the area of remedies.In existing law, most true property rules protect property rights. This leads to the second question addressed here: what relationship, if any, do property rules bear to property? After examining several theories others have proposed to explain the association between property rules and property rights, I suggest that property rules are connected to property in two ways. First, deterrent property rules ensure the continuity that makes property rights valuable to owners and to society. Second, once property rights are securely in place, the value they generate makes property rules a more efficient response to the possibility of unilateral taking. To achieve these results, however, both property rights and property rules must be implemented by general, determinate, and authoritative legal rules.

Optimal Design of Trade Agreements in the Presence of Renegotiation

We study the optimal design of trade agreements when governments can renegotiate after the resolution of uncertainty but compensation between them is inefficient. In equilibrium, renegotiation always results in trade liberalization, not protection. The optimal contract may be a “property rule” or a “liability rule.” High uncertainty favors liability over property rules, while asymmetries in bargaining power favor property over liability rules. Moreover, optimal property rules are never renegotiated. With a cost of renegotiation, property rules are favored when this cost is higher, reversing a central conclusion of the law-and-economics literature. (JEL C78, D86, F13, F15, K12)

Incorporation Rules

Following Calabresi and Melamed, legal theory has employed the property rule/liability rule distinction in order to hone our understanding of existing norms, as well as suggest new ones. This paper suggests an addition to the pantheon in the form of a protocol that we call an “Incorporation Rule”. It is a novel mechanism allowing private parties and courts to combine property rule and liability rule protection where both apply to the same entitlement. Incorporation Rules allow for separating the effects of intertwined property and liability rules, focusing on ex-ante voluntary determination of levels of protection usually adjudicated ex-post. Under the protocol, the entitlement is transferred to a special-purpose corporate vehicle, which then issues tailor-made securities to the owner of the entitlement and to the potential buyer or rivalrous user. In this manner, the entitlement is split along the contours of three basic corporate instruments – heterogeneous capital structure, separation of ownership and control, and an independent legal personality. By relying on these known-and-tested corporate mechanisms, risk and transaction costs are minimized, enforcement is improved, and heterogeneous preferences of individuals can be accommodated. The Incorporation Rule protocol thus allows for flexibility in protecting entitlements while facilitating efficient exchange.

Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community

Forty years ago, the small and underdeveloped nations on the mountainous western edge of South America formed a regional integration pact to promote economic growth, regulate foreign investment, and harmonize national laws. Overall, their enterprise has not turned out well. Riven by political schisms, economic shocks, and weak domestic legal and judicial systems, the five principal countries of the Andean Community—Bolivia, Colombia, Ecuador,Peru, and Venezuela— have failed to live up to their potential as South America's second largest trading bloc. The member states have relaunched the Andean integration project and revised its policies on multiple occasions, with at best only mixed results. Not surprisingly, most commentators have ignored the Andean Community or dismissed it as a failure.