Legal scholars have rarely seen 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 reformers of the disclosure tort have failed to budge the privacy tort for the last fifty years.
Wilkerson, Jared Aaron, Shaping the Disclosure Tort: A History of Scholars’ Early Importance and Modern Impotence (April 16, 2012).