In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by […]
In his groundbreaking 1967 study, Privacy and Freedom, Alan Westin defined privacy as “•the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. Many data protection laws enacted since then have followed suit, relying on choice””often together with notice necessary to […]
The Ninth Amendment””our resident anarchic and sarcastic “constitutional jester”””mocks the effort of scholars and judges alike to tame and normalize constitutional law.”¨The Amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would […]
In the years since Samuel Warren and Louis Brandeis proposed a unified theory of invasion of privacy tort liability, American information privacy law became increasingly fragmented and decreasingly coherent. William Prosser’s 1960 article, Privacy, which heavily influenced the Restatement of Torts, endorsed and hastened this trend toward fragmentation, which spread from tort law to the […]
Prosser analyzed privacy against the background of American experiences. Consequently, his views were shaped by the American legislative and judicial context. But none of the developments Prosser described is a singularly American phenomenon. Prosser’s reference to Warren and Brandeis’s 1890 article in the Harvard Law Review3 could just as easily have been expanded with references […]
At the fiftieth anniversary of Prosser”˜s Privacy, this Article takes a comparative approach in assessing his accomplishments. Germany”˜s legal system offers a fitting point of comparison because of its well-developed privacy law as well as its rich media landscape with similar kinds of invasions of privacy. Moreover, the United States and Germany share a Western […]
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. […]
For decades, we have refined concepts of information privacy, as well as intellectual property, that are largely based on individual rights. Such an approach is undeniably appealing. It does not necessitate a large enforcement bureaucracy, ostensibly enhances human freedom and self-determination, and ensures efficient information allocation through robust markets. As this article explains, a rights-based […]
Lesbian, gay, bisexual and transgender Americans have defended their interests in dignity, equality, autonomy, and intimate relationships in the courts by appeal to the right to privacy. In the constitutional arena they have experienced noteworthy success, winning rights to same-sex intimacy and, in some states, marriage. Several authors have argued that the privacy tort is […]
