Abstract
Trade secret law is built around a simple economic fact. Information can yield supracompetitive returns only when prospective competitors are prevented from using it, such as when it is kept secret from them. A successful trade secret plaintiff must therefore show that the alleged trade secret derives “independent economic value” from not being generally known to others. Yet modern doctrine sometimes treats this value requirement as something else—an inquiry into whether information is “valuable” in the abstract and whether it is independently useful versus dependent on some other information. Part of the reason is simply that proof of trade secret value is difficult. But another part lies in statutory drafting choices that have invited courts to take interpretive detours. Redundancy and indeterminacy in the statutory definitions encourage consideration of “value” as an abstract inquiry that can be proven by plaintiff-centric evidence, such as development costs or ongoing use, or defeated through categorical arguments about what type of information “counts.” The result is doctrine that recites the economic logic of trade secrecy, while quietly drifting away from it.
Recommended Citation
Gregory M. Dickinson,
The Vanishing Economics of Trade Secret Value,
91 Mo. L. Rev.
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Available at: https://scholarship.law.missouri.edu/mlr/vol91/iss3/8