Abstract

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Privacy's Other Path: Recovering the Law of Confidentiality


Neil M. Richards


Washington University in Saint Louis - School of Law

Daniel J. Solove


George Washington University Law School


Georgetown Law Journal, Vol. 96, p. 123, 2007
GWU Law School Public Law Research Paper No. 249
Washington U. School of Law Working Paper No. 07-03-02

Abstract:     
The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual's inviolate personality. English law, however, rejected Warren and Brandeis's conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law's divergent paths reveals that each body of law's conception of privacy has much to teach the other.

Number of Pages in PDF File: 60

Keywords: privacy, confidentiality, Brandeis, Prosser, British law, English law, comparative law, torts

JEL Classification: B30, D80

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Date posted: March 13, 2007 ; Last revised: March 13, 2013

Suggested Citation

Richards, Neil M. and Solove, Daniel J., Privacy's Other Path: Recovering the Law of Confidentiality. Georgetown Law Journal, Vol. 96, p. 123, 2007; GWU Law School Public Law Research Paper No. 249; Washington U. School of Law Working Paper No. 07-03-02. Available at SSRN: http://ssrn.com/abstract=969495

Contact Information

Neil M. Richards
Washington University in Saint Louis - School of Law ( email )
Campus Box 1120
St. Louis, MO 63130
United States
Daniel J. Solove (Contact Author)
George Washington University Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
202-994-9514 (Phone)
HOME PAGE: http://www.law.gwu.edu/facweb/dsolove/
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