The People’s Trade Secrets?
The content of administered public school exams, modifications made by a government to its voting machines, and the business strategies of government corporations should be of interest to the public. At a minimum, they are the kinds of information that a government should allow its citizens to see and examine. After all, the public might have some legitimate questions for its government: Is that voting machine working so that my vote gets counted? Is that public school examination fair and accurate? To whom or what is that government agency marketing and are kickbacks involved? One would think that the government should have to publicly answer such questions, at least in a democracy. While initially the above does not sound too controversial, the law has made it problematic. Getting access to the information that would answer the above questions may not be easy because the person requesting the information might have to show that the information is not a government trade secret before it can be disclosed. Today, the government of the people can keep information from the people by way of the commercial, intellectual property law of trade secrecy. Strangely, the people – citizens of states and the United States – apparently have trade secrets that they themselves cannot see. In other words, there is information that the government itself creates on its own (a “government trade secret�?) and that courts or attorneys general have found meet the applicable definition of a trade secret. This article examines whether a government trade secret should be allowed to exist, and, if so, whether governments should be allowed to shield government trade secrets from public disclosure. Importantly, I am not focusing here on trade secrets shared with government by private industry or created by private industry on the public’s dime. That topic was the focus of an earlier article. In Secrecy, I examined the question of whether private entities engaged in the provision of public infrastructure, like voting machines and public wifi Internet access, should be allowed to shield information regarding their products and services from public disclosure by way of trade secrecy. This is a question of applying democratic values like transparency and accountability to private entities, the practical effect of which is in direct conflict with the purpose of trade secrecy, namely, keeping information private. I concluded that, as applied to public infrastructure, trade secrecy should not be utilized by private entities engaged in its provision. While the conflict here is similar – transparency versus secrecy – the policy considerations are quite different. For example: do we need to incentivize innovation in government by way of trade secrecy? Should the government be in the business of leveraging competitive advantage in order to generate revenue or, much worse, for an unstated ulterior motive like avoiding public scrutiny? If the government is allowed to consider cost-effectiveness in its operations, should trade secrecy be the mechanism that allows for this consideration? As the application of trade secrecy by government is a very recent development (at least in the United States) and there a very few reported decisions dealing with the issue, its ramifications have yet to be explored in detail. I examine these questions and issues by explaining how trade secrecy and freedom of information laws interact, emphasizing the theoretically discordant nature of the government trade secret. In part two, I examine the basic issues involved in finding and maintaining a trade secret. In part three, I discuss several scenarios where government trade secrets have been asserted with questionable basis in the law, such as a county’s modification of voting machines, and/or where government trade secrecy has prevented the public from accessing valuable information, such as a public school system’s examinations and the minutes of public corporation board meetings. Additionally, I posit reasons why we may think that the problem of government trade secrets may be growing. In part four, I outline the basic principles of transparency, accountability and democratic governance. In part five, I discuss possible solutions to the problems discussed, and conclude that trade secrecy is a poor fit in government for two primary reasons: (a) the utilitarian basis for trade secrecy does not fit well when applied to government, and (b) transparency and accountability, two core democratic values, are severely undermined when trade secrecy is used to prevent disclosure of otherwise public information.
Legitimacy and Corporate Law: The Case for Regulatory Redundancy
This Article provides a democratic assessment of the corporate lawmaking structure in the United States. It draws upon the basic democratic principle that those affected by legal rules should have a voice in determining the substance of those rules. Although other commentators have noted certain undemocratic aspects of corporate law, this Article aims to present a more comprehensive assessment of the corporate regulatory regime. It departs from prior accounts by looking past the states’ role to consider the ways that federal regulation shores up the legitimacy of the overarching structure. This focus on the federal role provides some comfort on a democratic account, but also counsels caution with respect to continuing efforts to limit the scope of the federal role within the corporate governance structure. At the federal level, Congress has chosen to regulate corporate matters by setting broad policy objectives and delegating administrative tasks to the Securities and Exchange Commission (SEC). The democratic legitimacy of the corporate regulatory regime thus requires proper respect for the discretion that Congress has vested in the agency.  Associate Professor, Boston College Law School, A.B., Princeton, J.D., Harvard. The author thanks Joan Blum, Lawrence Cunningham, Elizabeth Foote, John Gordon, Ray Madoff, Michael McCann and Vlad Perju for helpful comments on drafts of this Article. The Article also benefited from comments by participants at the panel on Firms, Markets and Social Welfare at the 2008 Annual Meeting of the Law and Society Association and at a Boston College Law School Faculty Workshop. Joanne Ricciardiello and Arianna Tunsky provided excellent research assistance. Research support was generously provided by the Perini Family Faculty Research Fund. 1274 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 86:1273 This Article therefore urges skepticism toward efforts to constrain the SEC’s regulatory role through judicial challenges to its rulemaking authority. It argues that the agency’s ability to respond deftly to market crises and scandals has been hampered unnecessarily by a tradition of aggressive judicial review of agency rulemaking. While rooted in concerns for preserving democratic accountability, this tradition has undermined the very values it seeks to protect. Because the procedures for SEC rulemaking comport well with democratic principles, the agency deserves more deference than courts have been willing to allow. The analysis has implications for current proposals to reform regulation of the national financial markets. Calls to reduce or weaken the SEC’s role in financial regulation should give pause to those concerned with the democratic integrity of our regulatory processes. It is the SEC’s political independence that bolsters its ability to navigate the rough terrain of regulating the powerful industries within its jurisdiction. Enhancing rather than diminishing the agency’s independence should be a central element of proposals to reform our financial regulatory system.
List of the described Coleoptera ofTasmania.
The Coleoptera of Tasmania have never been considered as 
a whole since the time of Erichson, and no list or 
catalogue of the species has ever been compiled. About 
10,000 species have now been recorded from Australia and 
Tasmania, of which scarcely 400 have been described from 
Tasmania. A very imperfect knowledge of what species 
are confined to the island exists, as species supposed only 
to occur there, are constantly being found in Victoria and 
New South Wales, and even sometimes in Western Australia 
and Queensland; on the other hand, Tasmanian 
collectors frequently obtain mainland species which have 
never been recorded from Tasmania. 
I have considered it advisable, therefore, to prepare a 
list of the species hitherto recorded from Tasmania, adding 
to the list such species as I have seen in Tasmanian collections, 
or have myself taken in Tasmania. In this list, 
the genera and families are placed as far as possible in the 
order in which they appear in Masters' "Catalogue of the 
Described Coleoptera of Australia;" the species are placed 
alphabetically. All known synonyms have been omitted.