Fabian Junge, ‘The Necessity of European Harmonization in the Area of Trade Secrets’

Albeit often being considered as ugly duckling or stepchild of intellectual property in the past, the subject of trade secret protection has increasingly gained more and more importance. The desire to guard the sweeping economic value of intellectual property, and especially of trade secrets, prompted action by the European legislator. The recently adopted Trade Secrets Directive is aimed at harmonizing key aspects of civil trade secret protection in the EU by providing uniform definitions and requirements as well as minimum standards for procedures and remedies.

In a first step, this Thesis evaluates whether this harmonization is necessary at all given the existing domestic legal regimes and the minimum requirements enshrined in TRIPS. After identifying that there is indeed a detrimental fragmentation in the EU with respect to trade secret protection, harmonization on European level proves to be desirable and imperative for advancing the internal market and cross-border activities.

To be successful, however, the Trade Secrets Directive must be capable of adequately and effectively introducing an improved and comprehensive European regime on trade secrets. Therefore, the scope and content of the Trade Secrets Directive are critically assessed. Particularly, the limited reach of harmonization is highlighted. Furthermore, key substantive elements of the Trade Secrets Directive are examined with a focus on their impact on the approximation of national laws. In the end, the European legislator did create a level playing field for trade secret protection in the EU – but it is a flawed one.

Junge, Fabian, The Necessity of European Harmonization in the Area of Trade Secrets (September 16, 2016). Maastricht Faculty of Law European Private Law Institute Working Paper No 2016/04.

Max Raskin, ‘The Law of Smart Contracts’

Over the past few years a new technology called smart contracts has proliferated. These contracts are agreements where execution has been made automatic through the use of computers. This article examines smart contracts from a legal perspective, both their operation and place in existing contract law. The article concludes that smart contracts are simply a new form of preemptive self-help that should not be discouraged by the legislatures or courts. While certain egregious examples of their use may need to be policed, judges and policymakers should foster a climate that treats smart contracts as another form of more traditional agreements.

Raskin, Max, The Law of Smart Contracts (September 22, 2016).

Sergio Mittlaender Leme de Souza, ‘Morality, Compensation, and the Contractual Obligation’

This article presents empirical estimates that two thirds of the people perceive breach of contract followed by compensation for the promisee as not immoral. In the absence of compensation, it reveals that most individuals perceive the moral value of breach depending on the consequences thereof, with the unfairness of the outcome – and not the inefficiency – as the main factor. Contract law reflects interpersonal morality and allows courts to rescind the contract on grounds of impossibility or impracticability if the breach is fair and the promisor avoids exceptionally high losses, but not if the breach is unfair and the promisor breaches to profit from a substitutive transaction. The law, moreover, does not punish breach, nor inevitably requires performance by the promisor, but rather aims at compensating the victim, thereby reflecting how most individuals perceive breach followed by compensation, from a normative standpoint: as not morally wrong.

Mittlaender Leme de Souza, Sergio, Morality, Compensation, and the Contractual Obligation (July 29, 2016).

Elizabeth Rowe, ‘Unpacking Trade Secret Damages’

This study is the first to conduct an in-depth empirical analysis of damages in trade secret cases in the US. From an original data set of cases in federal courts from 2000 to 2014, I assess the damages awarded on trade secret claims. In addition, a wide range of other variables are incorporated into the analysis, including those related to background court and jurisdiction information, the kinds of trade secrets at issue, background details about the parties, the related causes of action included with claims of trade secret misappropriation, and details about the damages awarded.

Analysis of this data and the relationship between and among the variables yields insightful observations and answers fundamental questions about the patterns and the nature of damages in trade secret misappropriation cases. For instance, I find average trade secret damage awards comparable to those in patent cases and much larger than trademark cases, very positive overall outcomes for plaintiffs, and higher damages on business information than other types of trade secrets. The results make significant contributions in providing deeper context and understanding for trade secret litigation and IP litigation generally, especially now that we enter a new era of trade secret litigation in federal courts under the Defend Trade Secrets Act of 2016.

Rowe, Elizabeth A, Unpacking Trade Secret Damages (July 1, 2016).

‘Harvard Law School’s Private Law Workshop: Hanoch Dagan and Michael Heller, The Choice Theory of Contracts’

Let’s put freedom back into ‘freedom of contract’. That’s the ambition Professors Hanoch Dagan and Michael Heller set out in their forthcoming book, The Choice Theory of Contracts, excerpts of which the authors presented at this week’s HLS Private Law Workshop. Dagan and Heller contend that contract law’s ultimate value is, and ought to be, enhancing individual autonomy. They say that only a ‘choice theory’ of contracts facilitates such autonomy … (more)

[Samuel Beswick, New Private Law, 23 September]

Julian Arato, ‘Toward a Private Law Theory of International Investment Law’

This Dissertation lays the groundwork for a private law theory of international investment law (IIL). This project intervenes in a polarized debate on the nature of the global investment regime. With few exceptions, the scholarship has tended to divide sharply according to stylized visions of IIL as either a system of private, commercial law, or a system of public law. The ‘commercial law school’ tends to be associated with a thick, capital-centric vision of IIL – one that emphasizes insulating private interests from foreign state action. Scholars and practitioners in this vein tend to be apologists for the system, or advocates of only minimal structural reforms. By contrast, the ‘public law school’, tends to be associated with a thin vision of IIL, highly deferential to national sovereignty, where private interests take a back seat to bona fide national regulatory policy. Its adherents tend to style themselves as critics and reformers, decrying how the status quo seems to have sacrificed national regulatory autonomy at the altar of global capital. While the commercial lawyers have been far too dismissive of the threat posed by IIL to domestic public values, the public lawyers risk losing sight of the values states seek to achieve through IIL in the first place – the promotion of sorely needed foreign direct investment (FDI) and the protection of FDI providers. The debate thus far has proceeded mostly in caricature, and something important has been lost: the possibility of a nuanced system of international private law, sensitive to both the sovereign state’s public values and the private rights and interests of foreign investors whose protection is central to the object and purpose of the regime. These Chapters seek to fill that lacuna.

Julian Arato, Toward a Private Law Theory of International Investment Law. Columbia University Academic Commons, http://dx.doi.org/10.7916/D8CJ8DPX.

‘Common Law in the Age of Arbitration’

Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 University of Illinois Law Review 371 (2016). Judge-made law is dynamic. Rules adapt to innovations in technology, trends in human behavior and markets, and nascent theories that unsettle previously entrenched approaches to a problem. Even when a rule’s basic elements are stable, the accretion of new decisions can lead to subtly different formulations, caveats, and corollaries. Observers might therefore assume that doctrine in any given field will evolve for as long as affected actors are creative and litigious … (more)

[Allan Erbsen, JOTWELL, 23 September]

Wilson and Morse, ‘Realizing Informed Consent in Times of Controversy’

This Essay examines the elegantly simple idea that consent to medical treatment or participation in human research must be ‘informed’ to be valid. It does so by using as a case study the controversial clinical research trial known as the Surfactant, Positive Pressure, and Oxygenation Randomized Trial (‘SUPPORT’). The Essay begins by charting, through case law and the adoption of the common rule, the evolution of duties to secure fully informed consent in both research and treatment. The Essay then utilizes the SUPPORT study, which sought to pinpoint the level of saturated oxygen that should be provided to extremely low birth weight infants to demonstrate modern complexities and shortcomings of the duty to secure informed consent. This Essay shows how the duty is measured by foreseeability of risks and benefits in human research and why federal regulators believed the trade-offs in risk and benefits from differing oxygen levels administered in the support study were foreseeable. It then explores the contours of the duty to secure informed consent when applied to researchers who also serve as treating physicians, highlighting how common law duties differ in jurisdictions that apply the professional standard and those that apply the patient-centered material risk standard. This Essay provides new insight into what the law must do to make real the notion that ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his body’.

Wilson, Robin Fretwell and Morse, Robert John, Realizing Informed Consent in Times of Controversy (September 22, 2016). Journal of Law, Medicine and Ethics, No 44, 2016; Illinois Program in Law, Behavior and Social Science Paper, forthcoming.

Andrew Boon, ‘Understanding lawyer default in England and Wales: an analysis of insurance and complaints data’


In England and Wales the arrangements for compensating victims of lawyer default, fraud, incompetence and misconduct are extensive. Solicitors, the largest profession, maintain a compensation fund. Both solicitors and barristers require practitioners to carry professional indemnity insurance covering liability to clients. An agency deals with complaints about all regulated lawyers. This article outlines the jurisdictions dealing with lawyer default and the mechanisms for delivering compensation. It uses publicly available data generated by insurance claims and complaints to identify the causes of lawyer default. It analyses the volume and value of claims, the incidence of liability by areas of work and by different types of complaint. The article concludes by considering the relevance of, and current limitations of, default data in understanding lawyer default and in shaping regulatory policy.

Andrew Boon, Understanding lawyer default in England and Wales: an analysis of insurance and complaints data. International Journal of the Legal Profession. Download citation http://dx.doi.org/10.1080/09695958.2016.1227261. Published online: 13 Sep 2016.

Alexander Salter, ‘Ordering the Cosmos: Private Law and Celestial Property Rights’

The 2015 SPACE Act aims to promote wealth creation by guaranteeing protection of US citizens’ property rights to celestial resources. But there are serious concerns that government protection of space property claims are incompatible with international law. I propose a purely private legal system for space commerce as an alternative to government-defined and enforced property rights. Economic theory shows how property rights and rules for adjudicating disputes can be self-enforcing. Economic history shows that such a system has worked well for centuries in international trade. A private legal commercial order for space is thus both feasible and desirable.

Salter, Alexander William, Ordering the Cosmos: Private Law and Celestial Property Rights (September 19, 2016).