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59 U. Cin. L. Rev. 667 (1990-1991)
Liability for Reckless Misrepresentations and Ommissions under Section 10(b) of the Securities Exchange Act of 1834

handle is hein.journals/ucinlr59 and id is 677 raw text is: UNIVERSITY OF CINCINNATI LAW REVIEW PUBLISHED QUARTERLY BY THE BOARD OF EDITORS VOLUME 59 1991 No. 3 LIABILITY FOR RECKLESS MISREPRESENTATIONS AND OMISSIONS UNDER SECTION 10(b) OF THE SECURITIES EXCHANGE ACT OF 1934 Kevin R. Johnson* What passes in the mind of man is not scrutable by any human tribunal; it is only to be collected from his acts.** INTRODUCTION Courts for generations have been in a quandary about the mean- ing of a single Latin word-scienter. The basic meaning of the word, however, is relatively straight-forward. Scienteris frequently used to signify the defendant's guilty knowledge.' Before the advent of the tort of negligent misrepresentation,2 a speaker guilty of misrep- * Acting Professor of Law, University of California at Davis. A.B. 1980, University of California at Berkeley; J.D. 1983, Harvard University. I thank Chris Cameron and Dave Mackey for their thoughts and comments on an earlier draft of this Article. I also owe much to Desiree Cefalu (Class of 1990) and Richard Egger (Class of 1992), both whom provided helpful and diligent research assistance, often on short notice. Finally, I am indebted to the many attorneys at Heller Ehrman White & McAuliffe, who patiently taught a slow and perhaps reluctant student about the federal securities laws. Of course, I alone am responsible for all and any errors. ** King v. Shipley, 99 Eng. Rep. 774, 828, 4 Doug. 73, 177 (1784) (Ashurst, L.J.). In a similar, though less regal, vein, Lord Bowen observed over a century ago that the state of a man's mind is as much a fact as the state of his digestion. Edgington v. Fitzmaurice, 29 Ch. D. 459, 483 (1885). 1. BLACK'S LAW DICTIONARY 1207 (5th ed. 1979); see Hertz Corp. v. Cox, 430 F.2d 1365, 1373-74 & nn. 4-5 (4th Cir. 1970) (cataloging various definitions of scienter to same effect). 2. See infra note 145 (discussing tort of negligent misrepresentation).

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