Battle for the Disclosure Tort
35 Pages Posted: 18 Apr 2012 Last revised: 15 Jan 2013
Date Written: August 16, 2012
Abstract
Legal scholars guided the creation and development of privacy torts, including what would become known as the disclosure tort, for about seventy-five years (1890–1965), a period in which most states came to recognize a common law or statutory right to privacy. Since then, scholarly attempts to curb or modify the tort have yielded little. This article — beginning with the formalism-realism debate won by Brandeis, Pound, and Prosser and ending with modern experts — shows that notwithstanding enormous efforts by some of America’s most respected contemporary academics, would-be reformers of the disclosure tort have not budged it since Prosser’s Restatement (Second). The article presents both a lesson and a warning for modern scholars who seek to change privacy tort law.
Keywords: Privacy Torts, Legal History, Public Disclosure of Private Facts, Privacy
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