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Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson
Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson
Jared A. Wilkerson
Legal scholars guided the creation and development of the disclosure tort for about seventy-five years (1890–1965), a period in which most states recognized a common law or statutory right to privacy. Since then, however, scholarly attempts to curb or modify the tort have yielded nothing. This article—beginning with the formalism-realism debate won by such sages as Brandeis, Pound, and Prosser and ending with modern experts like Chemerinsky, Posner, and Solove—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 definition in the Restatement (Second). This …
Shaping The Disclosure Tort: A History Of Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson
Shaping The Disclosure Tort: A History Of Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson
Jared A. Wilkerson
Legal scholars have rarely encountered an area such as common law privacy, in which they had a guiding hand over the course of seventy-five years (1890–1965). Since then, however, scholars’ attempts to modify Prosser’s disclosure tort have failed. This article chronicles the early and potent scholarly influence from Warren and Brandeis to Hand, Pound, and Prosser. It continues with recent academic attempts to modify the disclosure tort, none of which has affected the narrow cause of action last touched by Prosser in the Restatement (Second). The article shows that, notwithstanding enormous efforts by some of America’s most respected scholars, would-be …