As this issue of the Virginia Law Review went to press, we received the sad news of Justice Antonin Scalia’s death. The Supreme Court has lost perhaps its most influential member; the University of Virginia has lost a former faculty member and good friend. I write today to celebrate his long and mutually affectionate association with the Law School.
Issue 2
The Changing Face of the Supreme Court
Thinking about such things as the justices, their clerks, and the Court’s relationships with the media and politics, I find that much has changed since my days with Justice Black. A justice from the Warren Court would find much that is familiar, but there would be surprises, too. Some of the changes he would observe could be fairly described as paradoxical.
Today’s justices are more diverse than were those of the Warren era. Yet, in some respects, the Court’s members are more elite and homogeneous than were those of fifty years ago. A quick glance at the modern justices’ credentials and geographic backgrounds brings home the point. Moreover, the current Court is presented with thousands more petitions than was the Warren Court. While the number of clerks available to assist with the caseload has grown substantially, today’s high bench issues fewer opinions on the merits. The Warren Court faced criticism for its living constitutionalism and doing politics; today’s Court faces even lower approval ratings and seems to be more politically and ideologically driven and divided than ever.
Changes at the Court naturally invite musing on theories to identify the causes and effects. A simple explanation may be that external politics have affected the inner workings of the institution. Perhaps life at the Court is different in good part because politics outside the Court have become more polarized. The increased diversity on the bench, a decline in consensus, the combative nomination process, the hiring of clerks from ideologically compatible “feeder judges,” and media portrayals of the Court all carry political overtones. The Court issues opinions many of which fundamentally affect the lives of American citizens. It may also be that these same citizens—how they live, how they think, for whom they vote—have fundamentally altered the Court itself.
The Case Against Federalizing Trade Secrecy
Trade secrecy is unique among the major intellectual property (“IP”) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors—including legislators, academics, high-technology firms, and organizations representing IP attorneys and owners—have supported the creation of a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime for IP rights.
This Article engages in the first systematic critique of the claim that federalizing trade secrecy is normatively desirable. Ultimately, it concludes that there are multiple reasons for trade secrecy to remain primarily the province of state law, including preservation of the states’ ability to engage in limited experimentation regarding the scope of trade secret protection and federalization’s potential negative impact on the disclosure of patent-eligible inventions. Finally, it proposes an alternative approach—a modest expansion of federal courts’ jurisdiction over state law trade secret claims—that can help address the issue of trade secret theft without requiring outright federalization.