Contract + Tort = Property: The Trade Secret Illustration

By Cavanaugh, Matthew Edward | Marquette Intellectual Property Law Review, Summer 2012 | Go to article overview

Contract + Tort = Property: The Trade Secret Illustration


Cavanaugh, Matthew Edward, Marquette Intellectual Property Law Review


  I. INTRODUCTION                                                 430  II. THESIS                                                       430 III. ROADMAP                                                      430  IV. ARITHMETIC LEGAL ANALYSIS                                    431      A. Hegel                                                     431         1. Dialectics Are Sums                                    431         2. Philosophy of Right                                    432         3. Thesis: Property (One Person's Rights Alone)           433         4. Antithesis: Contract (Rights Distributed Among            People)                                                434         5. Synthesis: "Wrong" (i.e., Crime and Tort; Enforces            Distributed Rights)                                    434         6. So Property + Contract = "Wrong"                       435      B. Criticism                                                 435      C. Transition: Review of Contract, Tort, and Property        436   V. CONTRACT, TORT, AND PROPERTY: RIGHTS, DEFENDANTS,      AND REMEDIES                                                 436      A. Contract                                                  436         1. Right Is to Performance                                436         2. Plaintiff Has Rights Against the Other Party to the            Contract                                               436            a. Voluntary Defendant                                 437            b. "Choice of Defendant"                               437         3. What Defendant Behavior Violates Rights                438         4. Remedies Are Limited                                   438            a. Benefit of Bargain                                  438            b. No Penalties                                        439            c. No Punitive (or Emotional Distress or Pain and               Suffering) Damages                                  439            d. Avoidability, Foreseeability, and Certainty         440      B. Tort                                                      441         1. Right is to Be Free of Injuries That Others Cause      441         2. Plaintiff Has Rights Against Injurers (Involuntary            Defendants)                                            441            a. Zone of Danger                                      442            b. Interaction Requirement                             442            c. Some Plaintiff Choice                               443            d. Employers, Other Drivers, Owners of Land, Etc.      443         3. What Defendant Behavior Violates Rights                443         4. Remedies Are Expansive                                 444            a. More Generous Than Contract                         444            b. To Make Plaintiff Whole                             444            c. Avoidability, Foreseeability, and Certainty               Doctrines More Limited                              445      C. Property                                                  445         1. Rights Are to Exclusive Possession, Use, and            Enjoyment                                              445         2. Plaintiff Has Rights "Against All the World"            (Anyone Can Be Defendant)                              445         3. Even Total Strangers Can Infringe or Trespass          446         4. What Defendant Behavior Violates Rights                447         5. Remedies Regardless of Plaintiff's Loss                447            a. To Exonerate Property Right                         448            b. Nominal Damages Available                           448         6. Summary and Transition                                 448  VI. TRADE SECRETS                                                449      A. Definition                                                449         1. Information                                            449         2. Independent Economic Value to Possessor                449         3. … 

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