The Private Law Writing Prize is awarded to the best student paper(s) on a topic in private law. The annual competition is open to current U of T Law JD students and is awarded at the end of the academic year.
Congratulations to the inaugural winners of the Private Law Writing Prize, Amitpal C. Singh (JD 2021) and Gerard (Kees) Westland (JD 2020).
"The Body as Me and Mine: The Case for Property Rights in Attached Body Parts" by Amitpal C. Singh
Abstract: According to a long-standing orthodoxy in the common law, the body is res nullius—nobody’s thing. Recently, this orthodoxy has been challenged. Courts have begun to allow for property in body parts. Yet the law still insists that the body as a whole is res nullius; body parts must be separated from the body to become ownable. I call the prevailing view, according to which separation from the body is morally transformative, the ‘Separation Thesis.’ In this paper, I argue that the law should recognize property rights in attached body parts, too. On closer scrutiny, none of the arguments for the Separation Thesis (which appeal to the ideas of possession, alienability, the distinction between owners and what they own, and the prospect of reunification) succeed. If separation from the body is not morally transformative, and we can have property rights in detached body parts, then we can have property in our bodies. This position is also normatively attractive. It readily explains why certain non-biological objects that fulfill bodily functions can become a part of our persons, such as wheelchairs and prosthetics. The view I offer also grounds a right to the parts of our bodies that are not necessary to our existence as separate agents, such as hair; other accounts struggle to substantiate the biological source’s claim to such body parts because they resist the idea of property in the body. Finally, my account captures both the proprietary and personal wrongs a tortfeasor commits when she excises a body part from another’s body without their consent. In sum, my view implies that we can have personal rights to things outside of the body and property rights to parts of our bodies. All of this scrambles the intuitive alignment of ‘person’ with ‘body,’ and ‘property’ with ‘the outside world.’
"Fundamental Rights and Canadian Private Law: A Private Law Account of the Horizontal Effect" by Gerard (Kees) Westland
Abstract: The term "horizontal effect” refers to the direct and indirect influence of fundamental rights on private law. While the development of fundamental rights is the salient feature of post war constitutionalism, debate persists over how these rights impact private law and what justification can be offered for this impact. The discussion has been most thoroughly developed in German jurisprudence.
This paper draws on German sources to offer a new account of the horizontal effect in Canadian private law. Setting out from the distinctive structure of the private law relationship, the paper argues that the horizontal effect balances two countervailing principles: protecting the integrity of private law on the one hand, and maintaining the moral unity of the legal system on the other. Based on these principles, the paper proposes a taxonomy of horizontality cases, organised around the defensive and protective functions of fundamental rights. The account presented here imposes conceptual limits on the horizontal effect, which are necessary for avoiding fundamental rights hypertrophy.
Congratulations to the student winners!
