The Metaphysics of Tracing: Substituted Title and Property Rhetoric

Abstract

Tracing is conceptualized as the following of an object through an exchange transaction and into the product of that exchange. Why is this so and what are the consequences? This article argues that the presentation of tracing in the metaphysical language of transmutation allows the doctrine to be depicted as consistent with axiomatic notions of property that understand it as pre-political and that preclude judicial readjustment of proprietary rights. However, the metaphysical conceptualization of tracing gives the remedy a conceptual structure that has resulted in the doctrine developing dysfunctionally when compared with the normative justifications that motivated its initial development. The reformation of the law of tracing necessitates understanding property as a social construct-the type of shift in perception that took place in the United States in the first half of this century. Signs of this understanding are apparent in the recent proprietary remedies jurisprudence of the Supreme Court of Canada

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