“The definition of insider trading is wholly judge-made: Every element of the crime and the scope of regulated individuals subject to it was divined by judges, not elected legislators,” Levoff’s lawyer Kevin Marino said in a filing. “This alone renders the criminal prosecution of insider trading unconstitutional.”
Courts for years have upheld criminal indictments in insider-trading cases brought by prosecutors. But Marino argued that despite numerous opportunities to examine the constitutionality of a federal common law of insider trading, courts have refused to do so.
‘Enforcement 40’ for 2020
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