ABSTRACT
Trade secret law is premised on secrecy, though it has not yet contended with the individual and social effects of keeping and leaking secrets in the psychological and sociological literature on secrecy. This Article introduces that literature and uses it to make the case that secrets make secret-holders feel like part of an exclusive club or secret society, fostering loyalty and bonds to their employer in a way that can explain trade secret law’s encouragement of corporate secrets. At the same time, this body of literature explains why and when secret-holders might be tempted to disclose the secrets they know, also clarifying trade secret law’s prohibition of many such disclosures as misappropriation. Moreover, because some secret-keeping can be personally or socially harmful, this literature also provides a framework to analyze when it might make sense for trade secret law to permit – or even encourage – the disclosure of corporate secrets. This overarching understanding also unifies the predominant, but separate, theories of trade secret law – as an incentive to innovate (or reduce secret-keeping costs) and as a regulation of commercial morality. It also provides a basis for a burgeoning view of trade secrecy law as protective of employees, not just businesses. In addition to providing a new conception of trade secrecy, this literature sheds light on how trade secret law might be modified to better accord with society’s use for and of secrets.
Fromer, Jeanne C, Trade Secret Societies (March 8, 2026), UCLA Law Review, volume 73, Forthcoming; NYU Law and Economics Research Paper Forthcoming; NYU School of Law, Public Law Research Paper Forthcoming.
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