VOLUME 167, ISSUE 5 April 2019

A foundational question in every dispute over intellectual property is whether the defendant’s product is too similar to the plaintiff’s. For almost all intellectual property regimes, an extensive body of case law and academic commentary has examined how such similarity should be measured. Trade secrecy, however, remains a remarkable exception. In trade secrecy cases, just as in other intellectual property cases, the defendant’s good or method can diverge markedly from what the plaintiff developed. Yet it turns out that trade secret case law provides little guidance for assessing how much similarity is too much. The standard remains, fittingly but frustratingly, a secret.

This Article takes the first close look at what that standard should be. We argue that trade secrecy’s similarity framework is currently asking an incomplete set of questions. It inquires almost exclusively into the defendant’s innovation steps, instructing factfinders to determine whether the defendant had acquired any advantage from familiarity with the secret. In doing so, it wrongly skips over an inquiry into the end product or process that the defendant is actually exploiting. A better test would consider not only the defendant’s benefit from knowing the secret, but also the kind of exploitable asset that the benefit ultimately translates into. Under our proposal, claims for misappropriation through either improper acquisition or disclosure would remain largely the same. But misappropriation through use would change. A defendant wouldn’t be liable for using a lawfully acquired secret unless it is exploiting an asset that incorporates material elements from the owner’s secret in a manner that the plaintiff actually foresaw or, given industry trends, could reasonably have foreseen.

This Article analyzes the current divergence between due process doctrine and practice. It begins by tracing the shift from the due process revolution’s court‐driven procedures to today’s bottom‐up experimentation. Next, it examines three recent examples of procedural experimentation and situates those innovations within the Supreme Court’s due process doctrine. The Article then proposes a dialogic approach to procedural due process, through which data generated by procedural innovations can help courts evaluate due process claims in litigation. By putting courts in conversation with the wave of procedural innovations unfolding across the nation, this dialogic approach can help revive an otherwise stagnant branch of constitutional doctrine and ensure that the Due Process Clause continues to guarantee fair procedures in the face of changing circumstances.

One of the most perilous pitfalls of constitutional criminal procedure scholarship is the inexact treatment of race vis‐à‐vis the Sixth Amendment right to counsel. This imprecision exists because of historical and theoretical blind spots. In right to counsel literature, race is either neglected, subsumed under poverty, or understood in the simple terms of disproportionality (e.g., how indigent defense’s failures acutely impact racial minorities). A historical examination of early legal aid institutions and jurisprudence reveals the centrality of race in modern indigent defense schemes. Throughout the twentieth century, the politics of race informed right to counsel decisions and policies in ways that shape the current landscape but have been unrealized by scholars. Inattention to the role of race ultimately limits intellectual discussions on the right to counsel as well as indigent defense reform efforts.

This Article supplies a distinct way of thinking about the right to counsel and, in doing so, extends a different set of analytical possibilities. It argues that race has shaped the scope and trajectory of indigent defense. The Article uses a diverse array of untapped historical sources to radically reinterpret the legal landscape before Gideon v. Wainwright—a period that is often insufficiently attended to—and shows how race operated in the background of constitutional interpretations of the right to counsel and governmental commitment to this provision. The Article then revisits the post‐Gideon world. It demonstrates how unacknowledged anxieties about race, along with recoded ideas about indigent defense as a social welfare policy, influenced the Court’s clarification of Gideon. The Article concludes with a discussion on how this history can inform contemporary criminal justice reform.