Law in Contemporary Society

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KeithEdelmanThirdPaper 3 - 19 Aug 2009 - Main.EbenMoglen
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-- KeithEdelman - 16 May 2009 \ No newline at end of file

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  • This is a reasonably convincing summary of the arguments already advanced by Picard in justification of attempts to recover some funds from some people who withdrew more from the Ponzi scheme than they invested at an earlier period than the ordinary cutoff for recovery of presumptively fraudulent conveyances. But you don't address the primary legal argument raised by those who consider Mr Picard's whole approach to be wrong: that there is a relevant statutory definition of "net equity" which has been employed in the past. No doubt this argument too has difficulties, but no more than Mr Picard's curious argument in favor of the clawback recoveries that "otherwise the thief chooses the winners" (of course he does, which is part of what makes him a thief).

  • In truth, of course, Mr Picard has no value from spending resources to sue retirees who have spent what they withdrew. As a justification for seeking recovery from Merkin or the Fairfield Greenwich managers, Mr Picard hardly needs it, except as an easier evidentiary lift than proof of complicity. People don't really care what tool he uses on ol' Ezra and Noel, so long as he doesn't use it on Aunt Sadie. Their respective asset bases are probably enough to differentiate them for Mr Picard.

  • It seems to me, however, that the primary problem with the essay, for our purposes, is that it's hard for you to do more than restate positions that Picard has expressed at length and Joe Nocera has expressed both broad and thick. You're stuck pretty much restating what's been said. If you're going to do another draft, I think the way forward is to take another look at the Madoff situation overall, to see if there is now something new to say about one or another of its many facets.

Revision 3r3 - 19 Aug 2009 - 19:52:51 - EbenMoglen
Revision 2r2 - 19 May 2009 - 03:30:11 - LaurenRosenberg
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