Jonathan Silver, ‘Tracing Delusions’

Claims involving substitute assets are not concerned with hard-headed property rights. The process of identifying a substitute asset, the process we describe as tracing, is a normative one, not one forced upon us by any rigid rules governed by the law of property. Consequently, claims in respect of substitute assets should be determined by the relationship between the claimant and the defendant, and the nature of the transaction(s) that the claimant seeks to impugn, not by some notion that the defendant somehow possesses that which can be demonstrated as belonging to the claimant.

Silver, Jonathan, Tracing Delusions (May 18, 2021).

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