The (Still) Shaky Foundations of Trade Secret Law

55 Pages Posted: 3 Jun 2014 Last revised: 11 Oct 2015

See all articles by Robert G. Bone

Robert G. Bone

University of Texas School of Law

Date Written: June 1, 2014

Abstract

In an article published about fifteen years ago, A New Look at Trade Secret Law: Doctrine in Search of Justification, 86 CALIF. L. REV. 241 (1998), I argued that that there is no convincing normative basis for an independent body of trade secret law distinct from other legal theories, and I recommended limiting protection for trade secret information mostly to contract. Since then, a number of scholars have come to the defense of trade secrecy, and many have challenged my original arguments. In this symposium article, I revisit my earlier analysis in light of this subsequent literature and respond to the arguments of my critics. I remain skeptical that there is a normative basis for a freestanding trade secret law that is not parasitic on other legal norms. My claim is that the only way broad protection for trade secrets could be desirable is if its social benefits exceed its social costs and that we lack the empirical evidence necessary to make this determination with a sufficient level of confidence. This raises the question of what to do when a body of law is justified, if at all, only on consequentialist grounds and there is insufficient empirical evidence to make reliable predictions about consequences. I briefly address this question in general and in the specific context of trade secret law.

Keywords: trade secrecy, trade secret law, intellectual property, economics of trade secret law

JEL Classification: K00, K11, K19, K29, K39

Suggested Citation

Bone, Robert G., The (Still) Shaky Foundations of Trade Secret Law (June 1, 2014). Texas Law Review, 2014, U of Texas Law, Public Law Research Paper No. 563, Available at SSRN: https://ssrn.com/abstract=2445024

Robert G. Bone (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-5562 (Phone)
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