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 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 defined it in the Restatement (Second). The article presents both a lesson and a warning for modern scholars who seek to affect – not merely discuss – privacy tort law.
Jared A. Wilkerson. 2012. “Battle for the Disclosure Tort: Scholars’ Untold Story” (ExpressO).