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Private Law Theory and Corrective Justice in Trade Secrecy

George Mason Law & Economics Research Paper No. 11-14

Journal of Tort Law, Vol. 4, Issue 2, Article 2, 2011

66 Pages Posted: 3 Apr 2011 Last revised: 8 Sep 2011

Eric R. Claeys

George Mason University

Date Written: March 30, 2011

Abstract

Judges and scholars debate whether trade secrecy’s normative foundations make the most sense when grounded in tort, contract, equity, unjust enrichment, unfair competition, or confidentiality norms. To help settle that debate, this Article applies a taxonomy of the private law developed in previous conceptual scholarship on corrective justice.

This taxonomy rules out the possibility that the normative interest justifying trade secrecy sounds in tort, contract, equity, or unjust enrichment. Because all of these fields are corrective, all of them implement norms that come from other fields of law. This taxonomy also rules out the possibility that the interest in a trade secret sound in liberty interests in competing or in forming and using confidential relations. Although these interests have the right conceptual structure to serve as inputs to tort and other corrective fields, neither fits enough trade secrecy doctrines to make a convincing conceptual match. The normative interest in a trade secret makes the most sense as a usufructuary property interest, or as a normative interest not adequately covered by existing doctrinal categories.

Keywords: assignability, attractive, Christopher, claimant, consilience, E.I. du Pont v. Masland, fairness, intellectual property, licensability, Lynn Tyler, Mark Lemley, misappropriation, nondisclosure agreement, philosophy, reverse-engineer, Richard Posner, utilitarian, valuable, William Landes, wrongful

JEL Classification: F12, K12, K13, O34

Suggested Citation

Claeys, Eric R., Private Law Theory and Corrective Justice in Trade Secrecy (March 30, 2011). George Mason Law & Economics Research Paper No. 11-14; Journal of Tort Law, Vol. 4, Issue 2, Article 2, 2011. Available at SSRN: https://ssrn.com/abstract=1799554

Eric R. Claeys (Contact Author)

George Mason University ( email )

3301 Fairfax Drive
Room 420
Arlington, VA 22201
United States
(703) 993-8247 (Phone)
(703) 993-8202 (Fax)

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