Note: A Federalist Account of the Law of Trade Secrecy


In May 2016, President Barack Obama signed the Defend Trade Secrets Act of 2016 (DTSA) into law. The DTSA amends an already-existing federal criminal statute—the Economic Espionage Act of 1996 (EEA)—to incorporate a private cause of action for misappropriation. At the same time, the DTSA also expressly provides that already-existing state laws will not be preempted. This decision is significant for two reasons. As a practical matter, it permits owners to retain the protections of the patchwork of state laws that previously served as their sole line of defense. In functional terms, moreover, this dynamic likely creates a novel federal-state system of protection, as well as an untested arrangement that will implicate significant doctrinal questions that pertain to federalism. This paper asks what the DTSA can tell us about federal and state relations, what we call “Our Federalism” and vice versa.


Stanford University Stanford, California
  • Martin J. Salvucci, Note, A Federalist Account of the Law of Trade Secrecy, 29 Stan. L. & Pol'y Rev. 183 (2018).
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