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 modem 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.