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Most Recent Print Issue
Volume 72, Issue 3
Published Summer 2023
ARTICLE
JUDICIAL SELECTION THAT FAILS THE SEPARATION OF POWERS
Stephen J. Ware
This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of workers across the country, especially the poor and workers from minority communities.
ARTICLE
VESTED PATENTS AND EQUAL JUSTICE
Adam J. MacLeod
In a time of renewed interest in equal justice, the vested patent right may be timely again. Vested patent rights helped marginalized Americans to secure equal justice earlier in American history. And they helped to make sense of the law. Vested patent rights can perform those tasks again today. The concept of vested rights render patent law coherent. And it explains patent law’s interactions with other areas of law, such as property, administrative, and constitutional law. The vested rights doctrine also can serve the requirements of equal justice, as it has several times in American history. Vested rights secure justice for vulnerable minorities against majority factions. They resist the tendency of law to devolve into power.
COMMENT
THE PANUWAT SNOWBALL: CORRELATION DOES NOT EQUAL MATERIALITY
Tanner Gattuso
Insider trading is a term of art referencing the fraudulent practice of trading securities in a company on the basis of material, nonpublic information about that same company in breach of some duty owed to another. The practice erodes the public’s trust in theintegrity of our capital markets for a reason that is rather intuitive: it is inherently unfair to allow an individual to make a quick and certain profit by exploiting material, nonpublic information to which he privy due solely to his position in a company or some other relationship of trust and confidence. In this context, unrelenting civil enforcement by the Securities and Exchange Commission (“SEC”) is surely warranted. But, what if an individual in possession of material, nonpublic information about one company trades in the securities of a different company? Is a civil enforcement action warranted in this context? This question is derived from the novel “shadow trading” theory of insider trading liability proffered by the SEC in its August 2021 civil enforcement action against Matthew Panuwat.
Judicial endorsement of the SEC’s shadow trading theory presents concerning doctrinal and practical implications. First, it upends the traditional materiality inquiry required in an insider trading action. Second, it transforms Rule 10b-5—the SEC’s primary enforcement mechanism—into a rule without limitation. Third, it will increase the cost of executing securities transactions as investors in possession of material, nonpublic information about one company could be required to abstain from trading in an endless list of companies, industries, and investment vehicles. Taken together, these considerations compel the rejection of the SEC’s shadow trading theory of insider trading liability.
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