Madoff Ponzi Scheme and the Sub-Prime Mortgage Securitization Debacle: The State Common Law Aspects

Charles E. Rounds, Jr.

Charles E. Rounds, Jr., State Common Law Aspects of the Global Unwindings of the Madoff Ponzi Scheme and the Sub-Prime Mortgage Securitization Debacle, 27 Wisconsin Int’l Law J. (2009). When all is said and done, Bernard Madoff violated a fundamental principle of agency law, namely that an agent with discretion who engages in unauthorized self dealing with the principal’s property breaches his or her fiduciary duty to the principal and incurs liability as a result. The principal is generally entitled to equitable relief. It is as simple as that. As to the sub-prime mortgage securitization debacle, it was the very essence of the Anglo-American trust, itself an invention of equity, which facilitated the massive global mispricing of beneficial interests in pools of sub-prime mortgages, namely that the holder of the legal title to entrusted property need not also possess the beneficial interest in it. The rest is history. That Agency, Trusts, and Equity are no longer required courses in most American law schools, and have not been for some time now, is regrettable. Curriculum reform is fine, but not if critical doctrine ends up on the cutting room floor.

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