Friday, October 4, 2013
Alberto Bernabe (The John Marshall Law School) has posted to SSRN Giving Credit Where Credit Is Due: A Comment on the Theoretical and Historical Origin of the Tort Remedy for Invasion of Privacy. The abstract provides:
In 1890 Samuel Warren and Louis Brandeis published The Right to Privacy, which is considered by many to be the most influential law review article in the history of American tort law. Years later, in another famous and influential law review article, William Prosser attempted to complete the work of Warren and Brandeis. His proposal for a new understanding of the right to privacy, however, contradicted Warren and Brandeis’ understanding of it and, in fact, altered the character of the concept. Nevertheless, it was later adopted in the Restatement of the Law Second. Thus the traditional view of the origin of the concept of a privacy tort is that it was created by Warren and Brandeis and refined by Prosser. Although partially correct, this explanation tells only a small part of a more complex and interesting story. A more careful reading of the story shows that the article by Warren and Brandeis has been given more credit than it deserves and that Prosser’s attempt to organize the notion of a privacy torts into a small number of categories was, at best, counterproductive. The real origin of the concept of privacy as an interest that deserves protection in tort law was the common law of torts itself, best exemplified by a decision of the Michigan Supreme Court published nine years before Warren and Brandeis’ article. The right to privacy was not born in a law review article. It was born the day an uninvited stranger happened to be present when a woman was having a baby at home. It is important to give credit where credit is due; not to Prosser, not to Warren & Brandeis but to Chief Justice Marston who, in DeMay v. Roberts, was the real precursor to what we now refer to as the right to privacy.