Volume 4, Issue 2

Judges and scholars debate whether trade secrecy’s normative foundations make the most sense when grounded in tort, contract, equity, unjust enrichment, unfair competition, or confidentiality norms. To help settle that debate, this Article applies a taxonomy of the private law developed in previous conceptual scholarship on corrective justice.This taxonomy rules out the possibility that the normative interest justifying trade secrecy sounds in tort, contract, equity, or unjust enrichment. Because all of these fields are corrective, all of them implement norms that come from other fields of law. This taxonomy also rules out the possibility that the interest in a trade secret sound in liberty interests in competing or in forming and using confidential relations. Although these interests have the right conceptual structure to serve as inputs to tort and other corrective fields, neither fits enough trade secrecy doctrines to make a convincing conceptual match. The normative interest in a trade secret makes the most sense as a usufructuary property interest, or as a normative interest not adequately covered by existing doctrinal categories.

Property in land suffers from an unacknowledged precautionary deficit. Ownership is dispensed in standardized blocks of monopoly control that are routinely retained in their entirety until someone raises an issue regarding an actual or potential incompatible land use. This arrangement, which encourages owners to take sustained, unpriced draws against a limited stock of future flexibility, sets the stage for future impasse as inconsistent plans develop. It also makes property an unnecessarily accident-prone institution, given the role that bargaining failure plays in producing costly land use conflicts. Expanding the slate of potential precautions beyond owners’ locational and operational choices to include their choices about the strength and content of their own entitlements offers new traction on land use disputes. In this article, I propose using a local option exchange to confront owners with the opportunity costs of maintaining veto power over unused, low-valued rights. Enabling owners to relinquish property-rule protection of such rights before conflicts arise could make property more flexible and communicative, and hence reduce the costs of incompatible land uses. This approach presents interesting institutional and theoretical challenges. Among other things, it requires rethinking the limits of customization in property bundles and the potential for owner participation in entitlement definition.

Public nuisance has recently been dusted off as a potential source of legal redress for tobacco use, handgun distribution, lead paint removal, MTBE contamination, and global warming. The premise of this litigation is that public nuisance is a tort, and that courts have inherent authority as common law tribunals to determine what conditions qualify as a public nuisance. This article argues that public nuisance is properly regarded as a public action rather than a tort, as revealed by a number of its features, including the nature of the interest protected—rights common to the general public—and the traditional understanding that public nuisance is a crime. The view that public nuisance is a species of tort liability is a product of the Restatement (Second) of Torts, which sought in the 1970s (without notable success) to transform public nuisance into a weapon to combat environmental harms. If public nuisance is properly regarded as a public action rather than a tort, then the effort to enlist public nuisance as an instrument of social reform without authorizing legislation suffers from a delegation deficit. Public nuisance, like other public actions, should not proceed unless the legislature has first specified the circumstances in which liability exists, and who has authority to bring an enforcement action. This means courts should disclaim any inherent authority based on the common law to declare that particular conditions are a public nuisance. It also means that existing public nuisance statutes, which were typically adopted years ago with a different order of social problem in mind, should be interpreted non-dynamically, in order to preserve the principle that public actions must be grounded in enacted law rather than a claim of inherent judicial authority.

Tort law presents a puzzle from an information cost point of view. Like property, its duties often avail against others generally, but unlike property it is appears not to be standardized and is more subject to judicial innovation. This essay argues that torts, like property, employs modular structures to manage the complexity of interactions between actors. Both property and torts solve the information cost problem with “in rem” rights in similar ways, by chopping up the world of interactions between parties into manageable chunks—modules—that are semi-autonomous. Instead of employing “things” to achieve modularity, tort law employs other strategies to limit information costs, by hiding information and making tort law less context-dependent than one might expect from a “law of actions.” The features of tort law emphasized by noneconomic theories of tort law—corrective justice, civil recourse, and natural rights—can be seen as managing the complexity of tort law. These include tort’s bilateral structure, the content of duties, and proximate cause. As in property, a heavy reliance in tort law on simple moral norms, which are easy to communicate and self-enforce, receives a partial explanation in terms of information costs. Economic analysis and broadly moral theories of torts turn out to be closer together at the descriptive level than is usually thought.