Document Type
Article
Publication Title
University of Chicago Law Review
Abstract
Unlike patents and copyrights, trade secrets are protected primarily by state law rules, with some limited federal protection thrown into the mix. One gap in the system leads to a loss of protection for everyone, so that the gains from a uniform and consistent set of rules for trade secrets are enormous. Even so, those gains can be realized only through consistent interpretation and enforcement of these rules. For the most part, this congruence has taken place on the subconstitutional level, but the constitutional dimensions of trade secret law, especially in relation to the Takings Clause, do matter when trade secrets are subject to federal or state health and safety regulation. In dealing with this problem it is important not to overestimate the distinctive nature of intellectual property and underestimate its continuity with tangible forms of property. Indeed, the case law on this subject offers a back-handed vindication of this thesis. The law first places excessive reliance on the now-canonical but intellectually indefensible distinction between physical and regulatory takings. Thereafter it misapplies a distinction that ought not to be used in the first instance. In this Essay, I hope to show how these twin difficulties play themselves out in connection with two key cases under the Takings Clause-the now venerable decision in Ruckelshaus v Monsanto Co, and the more recent First Circuit decision in Philip Morris v Reilly.
First Page
57
Volume
71
Publication Date
2004
Recommended Citation
Epstein, Richard A., "The Constitutional Protection of Trade Secrets Under the Takings Clause" (2004). Faculty Articles. 261.
https://gretchen.law.nyu.edu/fac-articles/261
