Essay  |  Volume 159

A Failure of Uniform Laws?

159 U. Pa. L. Rev. PENNumbra 1 (2010)

Posted on 10-2010

Essay - A Failure of Uniform Laws?

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.

Continue to full article.

Next Essay 

Original Citizenship

Josh Blackman