Private Law Theory and Corrective Justice in Trade Secrecy
Journal of Tort Law, Vol. 4, Issue 2, Article 2, 2011
66 Pages Posted: 3 Apr 2011 Last revised: 8 Sep 2011
Date Written: March 30, 2011
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: Suggested Citation