Prosser’s Privacy Law: A Mixed Legacy

12 Feb 2011 03:19pm Neil M. Richards, Daniel J. Solove 

This Article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of giving it no guidance and making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in a digital age, it must move beyond Prosser’s conception.

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