Since at least the early 19th century, federal courts have declined to hear charges brought as common law crimes. In United States v. Hudson and Goodwin, 11 U.S. 32 (1812), the U.S. Supreme Court made clear that, in order to be prosecuted in federal court, a defendant must be charged with a crime defined by Congress and enacted into federal law.
The crime of insider trading, though derived from §10(b) of the Securities Exchange Act of 1934, has struck observers over the years as being more akin to a common law crime, with key elements being shaped chiefly by federal judges. Cases that deal with cutting-edge issues in insider trading law typically turn on construing prior court decisions and policy arguments rather than a parsing of Congress’s terse wording. This jurisprudence contrasts with recent Supreme Court decisions such as Yates v. United States, 574 U.S. 528 (2015), which have centered on a close reading of statutory text.