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107 Iowa L. Rev. Online 1 (2022)

handle is hein.journals/iowalrb13 and id is 1 raw text is: Why Mixed Motives Shouldn't Really
Matter in Insider Trading Law: A Reply to
Andrew Verstein's Mixed Motives Insider
Trading
Zacharyf Gubler*
ABSTRACT: In his intriguing article, Mixed Motives Insider Trading,
Andrew Verstein argues that an insider trader should only be liable if he is
primarily motivated by unlawful information. His argument is creative and
ingeniously presented, but in my view, it provides the wrong answer to the
wrong question.
I.   AN INGENIOUS MODEL BUT WITH A POSSIBLE OVERSIGHT................ 2
A.    VERSTEIN'S APPROACI: A TOP-DOWN POLICYANALYSIS............... 3
B.    A  POSSIBLE  OvERSIGHT? ........................................................  6
II.  WHERE THE DISAGREEMENT REALLY LIES...................................... 10
A.    MYAPPROACH: A BOTTOM-UP APPROACH................................ 10
B.    WHEN DOES INSI)ER TRADING VIOLATE FhIUCIARY DUTIES?...... 11
C.    WHEN DOES INSI)ER TRADING VIOLATE CONTRACT LAW?.......... 12
D.    WinY TilIs BOTTOM-UP APPROACii? ........................................14
E.    WIIY VERSEIN REjECTS TIiE BOTTOM-UP APPROACii ................16
III.  C O N CLU SIO N  .................................................................................. 18
Andrew Verstein's, Mixed Motives Insider Trading,' is a fantastic article. It's
smart, well-written, and represents a real contribution to the insider trading
literature while at the same time tying that literature to a broader conversation
on the proper treatment of mixed motives spanning many different areas of
the law. If any aspiring or junior law professor (or anyone, really) is on the
lookout for models of excellent legal scholarship, look no further than this
article. It's the real McCoy.
* Marie Selig Professor of Law, Arizona State University Sandra Day O'Connor College of
Law. All errors are mine.
1. Andrew Verstein, Mixed Moiives Insider Trading, lo IOWA L. REv. 1253 (2021).

1

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