A New Look at Trade Secret
Law: Doctrine in Search of Justification
|Trade secret law is an anomaly in
intellectual property. It focuses on relationally
specific duties and imposes liability only when
the means of appropriation is wrongful, where
wrongfulness is mainly determined by reference to
independent legal norms. This article provides an
explanation for these anomalies and discusses
some of the implications for trade secret reform.
Simply put, the thesis is that there is no such
thing as a normatively autonomous body of trade
secret law; that trade secret law is mainly just
a collection of other legal norms. Nothing in the
idea of a trade secret as such--neither the fact
that it is information nor the fact that it is
secret--provides a convincing reason to impose
liability in the way modern trade secret law does.
To support this thesis, the author surveys the
history of trade secret law and then critically
examines the various policy justifications
offered by courts and commentators. He concludes
that the formalistic roots of the doctrine offer
no support for its application today, and that
modern policy arguments fail to make a convincing
case except possibly in a few limited situations.
As a result, trade secret liability should be
governed mainly by contract principles.
© 1998 by California Law Review, Inc.
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