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

Suggested Citation

Wilkerson, Jared Aaron and Wilkerson, Jared Aaron, Battle for the Disclosure Tort (August 16, 2012). California Western Law Review, Vol. 49, No. 3, 2013, Available at SSRN: https://ssrn.com/abstract=2040888 or http://dx.doi.org/10.2139/ssrn.2040888

William & Mary Law School ( email )

Williamsburg, VA
United States

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