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Others have argued that American reliance on several antifraud provisions, and the absence of a statutory definition of insider trading, may lead to unfairly penalizing traders whose conduct comes close to the line.9 This seems an illusory concern. There are at least two compelling reasons for this. First, scienter, a fraudulent intent, is an element that must be proven.10 Second, given the inherent difficulties in investigating and proving insider trading cases, the reality is that there is a significant amount of clearly illegal activity that goes undetected or unpunished. As SEC Chairman Levitt recently observed, "It's not as if insider traders wander innocently into the gray areas near the boundaries of legality. They willfully stride across the bright line of the law."11
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