Tipper Credibility, Noninformational Tippee Trading, and Abstention from Trading: An Analysis of Gaps in the Insider Trading Laws

The regulation of insider trading in the United States prohibits only a fraction of the kind of behaviors which the Securities and Exchange Commission sought to curb in the 1930s. This Article explains the problems created by trading on tipper credibility and noninformation, as well as the difficulties associated with insider abstention from trading. These practices are conceptually akin to trading on inside information, yet they fall beyond the purview of existing prohibitions. The Article examines potential vehicles for rendering the regulations more consistent, including authorization of all insider trading, policing of information, the creation of inferences of fraud from circumstantial evidence, the prohibition of entire classes of trades, and the application of a reduced threshold "fraudulent scheme" concept to trigger liability in loophole cases.