The Expressive Function of Trade Secret Law: Legality, Cost, Intrinsic Motivation, and Consensus

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Abstract:

In recent years, leading legal scholars have proposed many competing models for the expressive function of the law. This article attempts to organize and compare the competing models while examining a real-life dilemma—sharing confidential information when one moves from one company to another—and explores the mechanisms through which the law can affect people's behavior. The article examines the expressive impact that results when trade secret laws are experimentally “primed” on factors such as: intention to share confidential information, morality of sharing confidential information, perceived proportion of other employees who would share confidential information, and the likelihood of social approval by previous and current employers for sharing confidential information. Taking a path analysis approach, I discern which models (cost related, morality related, coordination based, or reflection of consensus) best explain the mechanism responsible for the expressive effect of legality. The comparison between the models illustrates the relative legal repercussions of price, consensus, and intrinsic motivation as they relate to employees' evaluations of the prevalence and desirability of trade secret sharing norms. Based on data collected from a sample of 260 high-tech employees in the Silicon Valley, the article demonstrates that—at least in the context of trade secret law—the expressive impact is based primarily on morality and less on the law's ability to impose social and career costs.

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/j.1740-1461.2009.01141.x

Affiliations: Bar-Ilan University

Publication date: March 1, 2009

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