Volume 14, Issue 2

97Abstract Over the past three decades, Professor Henry Smith and Professor Thomas Merrill have collaborated to develop a concept of property that aims to redefine property with an irreducible core: the right to exclude. Their essentialist view has gained significant attention today, particularly due to their use of information cost theory to justify why the right to exclude — serving as the primary rule for delineating entitlements — constitutes this core. Smith and Merrill argue that structuring property law around a simple exclusion rule while reserving more complex governance rules for exceptional cases enhances economic efficiency by reducing information costs. This paper challenges their simplicity-based entitlement delineation framework from two perspectives. First, the framework is not as simple as Smith and Merrill suggest, as their attempt to limit complex governance rules to exceptional cases is not entirely successful. Second, their prioritization of simplicity for the sake of economic efficiency comes at the cost of overlooking non-economic values. In addition, they fail to establish that preserving simplicity is superior to embracing a more complex approach.

125Abstract Understanding the nature of the rights held by the beneficiary of a trust has been far from straightforward. The prevailing orthodox position in English law is that the beneficiary has an equitable proprietary right in rem with title to the trust property conceptually split between the trustee’s legal title and the beneficiary’s equitable title. It is this conceptual duality between legal and equitable title to the trust property that has been most objectionable to lawyers of the civilian tradition. However, the position of the beneficiary in English law is in fact much more nuanced and contested. The debate has been reinvigorated in recent years by scholars arguing that the beneficiary’s right is not proprietary, he simply has a right against the trustee’s right to the trust property. Responses to this theory reveal that we remain at somewhat of an impasse. Building on recent work by David Foster, this article seeks to move the modern debate on by considering the nature of the beneficiary’s interest in its proper historical context. By placing the debate on the nature of the English trust on firmer historical foundations, the English trust can be seen to be a deeply practical device with a dual contractual and proprietary nature, which in turn better informs common lawyers, civilians and comparativists on the nature of trusts and trust-like devices.

147Abstract Article 1 of Protocol No. 1 (A1P1) of the European Convention on Human Rights (ECHR), which protects the right to property, is one of the most litigated provisions of the ECHR. A1P1 mentions the peaceful enjoyment of property and provides requirements for the deprivation of property and the control of its use. Previous research shows that most of the scholarship is centered around a limited number of landmark cases that establish a set of three rules used to approach cases under this article. The entire body of case law relating to A1P1 has not yet been studied in an integral manner and this paper therefore sets out to explore what overview emerges if such a study is carried out. This study aims to uncover sub-topics in A1P1 judgments, identify central judgments within these sub-topics, and describe rules at play in the central judgments. It was expected that the judgments would cluster around the three rules identified in the ECHR and legal scholarship and around other major doctrines such as the fair balance test. A combination of network analysis and doctrinal analysis reveals scattered doctrines that include links to other fundamental rights, positive state obligations, and general approaches. While the three rules remain central to A1P1 case law, the ana148lysis of judgments reveals a more layered doctrinal structure. Beyond the conventional framework, the Court often makes assessments based on the specific circumstances of the case. This finding, which moves beyond abstract principles to factsensitive reasoning, introduces a degree of complexity that has not been fully acknowledged in existing legal scholarship. The study shows this complexity, suggests new avenues for understanding A1P1-case law, and offers practical insights for litigants, scholars, and judges engaging with A1P1 judgments.