18 Wake Forest J. Bus. & Intell. Prop. L. 190
The concept of inevitable disclosure in trade secret law — that an
employee should be blocked from taking a new job because it must be
presumed that he or she cannot help but to engage in future wrongdoing
— resembles a sociological hypothesis. It sounds like a concept that
would result from empirical studies reflecting a methodology that takes
account of many factors.
But that is not so. A review of more than 200 nationwide cases tells
us that the hypothetical construct of inevitable disclosure is instead a
very successful example of legal storytelling—a legal fiction that has all
too often substituted for rigorous analysis.
Although the debate about inevitable disclosure among legal
scholars, courts, and practitioners is widespread, this is the first Article
to ask whether that hypothetical construct has an empirical basis.
Using a data-set of nationwide case law stretching back over one
hundred years, with an emphasis on recent decisions, this Article
concludes that a significant minority of courts considering requests for
inevitable disclosure injunctions do so using a purely abstract,
unverifiable construct. Some courts even reject evidence of good faith
conduct in favor of that construct.