In
September 2010, the Supreme Court granted certiorari in the controversial
Baycol litigation. The central question will be whether, subsequent
to a denial of class certification, preclusion can prevent an absentee
from seeking to certify another class action on a similar claim.
Professor Kevin Clermont's Essay answers that question in the affirmative,
while warning that the preclusion is very limited in scope. It
arrives at this answer by analogizing to the more established doctrine
of jurisdiction to determine no jurisdiction: if a court's finding
of no jurisdiction over the subject matter or the person can preclude,
then a finding of no authority to proceed as a class action should be
preclusive—but only on that precise issue of no authority.

The
Uniform Trade Secrets Act (UTSA) has been adopted in forty‐six states
over its thirty year existence. Uniform laws like the UTSA serve
at least two important purposes. First, they provide a consistent
set of rules to provide settled expectations for interstate activities.
The Uniform Commercial Code and Uniform Child Custody Jurisdiction Act
are good examples of this purpose. Buyers, sellers, and parents
cannot avoid important legal rules by changing states, therefore helping
to reduce forum shopping. Second, uniform laws allow state legislators
to adopt sister‐state statutory interpretations when they enact the
law. The UTSA illustrates this purpose. Each
state's UTSA case law should theoretically apply in every other state
adopting it—an important benefit for small states that do not have
enough litigation activity to generate substantial trade secret case
law of their own.

Testing
how well the UTSA serves as a source of extraterritorial precedent is
difficult, however. First, many states had their own trade secret
common law to draw on prior to passage of the UTSA. Second, even
if a court uses persuasive authority from another state, the court might
then further shape the law to its liking. Third, measuring the
impact of extraterritorial precedent is difficult because judicial opinions
might import law on some issues and not on others.

West
Virginia's UTSA experience provides an answer to these measurement
difficulties. An examination of West Virginia law reveals a curious
fact: a complete absence of state court trade secret case law, both
before and after passage of the UTSA. This characteristic makes
West Virginia the perfect test case of a small state with insufficient
litigation activity to generate its own trade secret law.