Bernabe on the Theoretical Foundation and Historical Origin of the Tort Remedy for Invasion of Privacy

Alberto Bernabe (John Marshall Law School) has posted "Giving Credit Where Credit Is Due: A Comment on the Theoretical Foundation and Historical Origin of the Tort Remedy for Invasion of Privacy," which was published in 2012 in the John Marshall Journal of Computer & Information Law. Here's the abstract:

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.

The full article is available here.

A Retrospective on the Church Committee

As the first session of a three-part discussion series, Surveillance and Foreign Intelligence Gathering in the United States: Past, Present, and Future, tomorrow Georgetown Law’s Center on National Security and the Law will be hosting a retrospective on the Church Committee.  Senator Patrick Leahy (D-Vermont), Chairman, Senate Judiciary Committee, will deliver the keynote.  Panelists are Former Vice President Walter Mondale, Church Committee Member; Former U.S. Senator Gary Hart, Church Committee Member; Former U.S. Ambassador William Miller, Church Committee Staff Director; and Dr. Loch Johnson, Former Special Assistant to Senator Frank Church.  My colleague Laura K. Donohue, Professor of Law and Director of the Center on National Security and the Law, Georgetown University Law Center, will moderate.

The organizers explain:

This is a crucially important time for the United States—a number of foreign intelligence gathering programs using new technologies have recently been unveiled, and the public, the media, and scholars are just beginning to address their implications. Part one of this three-part discussion series will focus on the 1975-76 Church Committee (formally known as the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities), which exposed government surveillance abuses and played a key role in the creation of the Foreign Intelligence Surveillance Act. Following the keynote address by Senator Leahy, an esteemed panel of former Church Committee members and top staff will discuss this turning point in American history.

The keynote and panel will take place on Tuesday, September 24, 2013, from 9:45 a.m. to 12:00 p.m., in the Hart Auditorium, McDonough Hall, Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, D.C. 20001.

Update

McCoy, "The Making of the U.S. Surveillance State"

Looking for a historian's perspective on the recent NSA surveillance disclosures? Head to the History News Network for Alfred W. McCoy's take on "The Making of the U.S. Surveillance State, 1898-2020." Here's the first paragraph:

Alfred W. McCoy (UW-Madison)

The American surveillance state is now an omnipresent reality, but its deep history is little known and its future little grasped. Edward Snowden’s leaked documents reveal that, in a post-9/11 state of war, the National Security Agency (NSA) was able to create a surveillance system that could secretly monitor the private communications of almost every American in the name of fighting foreign terrorists. The technology used is state of the art; the impulse, it turns out, is nothing new. For well over a century, what might be called “surveillance blowback” from America’s wars has ensured the creation of an ever more massive and omnipresent internal security and surveillance apparatus. Its future (though not ours) looks bright indeed.

Read on here.

Weekend Roundup

• CALI does constitutional history!  Hat tip: Ross Davies and Roger Skalbeck.   

• Over at JOTWELL: William Baude (Stanford Law School) writes a glowing review of Clyde Spillenger's "Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940."  

• If you've never perused the website of the Historical Society of the New York Courts it is worth a look. 

• From the New York Review of Books Blog: Spying on Americans: A Very Old Story. 

• Over at H-Law, Kenneth J. Hirsh, Cincinnati Law, plugs the Louis Marshall Papers at the Jacob Rader Marcus Center of the American Jewish Archives at the Cincinnati campus of Hebrew Union College.

• Lori Clune, an assistant professor of history at California State University, Fresno, makes the case for sparing the Rosenbergs at HNN.

• Scott Douglas Gerber (Ohio Northern University Law), editorializes in the Providence Journal on Law and the Lively Experiment in Colonial Rhode Island.

• The American Academy in Berlin invites applications for its residential fellowships for 2014-2015, as well as early applications for the academic years 2015-2016 and 2016-2017. The deadline is Monday, September 2, 2013 (12 pm EST or 6 pm CET).  More.

• The University of Pennsylvania Law Review is looking for contributors to “its online companion, Heightened Scrutiny. Essays selected for HS go through the full editorial process and are published to the major databases, in addition to being perpetually available on our website. We typically run shorter pieces with an eye towards more timely commentary on current events in the law.”

• It's still June, so there's still hope for our summer writing agenda.  If you're feeling the need to be sternly talked to on the subject, try Rachel Toor in the Chronicle of Higher Education: I Don't Write Enough Because ...  Hat tip: Linda Przybyszewski.

• From Books & Ideas: Eva Hemmungs Wirtén on the Commons, Old and New: From Land Use to Information Sharing.

The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Ziegler on the Price of Privacy

Mary Ziegler, Florida State University College of Law, has posted The Price of Privacy, 1973 to the Present.  Here is the abstract:

The legal academy has not been kind to the privacy rationale set forth in Roe v. Wade. Roe is seen to have promoted a single-issue agenda based on the importance of privacy and choice. Because Roe so quickly became vulnerable, its defense became a priority, and activists speaking out in favor of the opinion felt encouraged to defend it on its own terms. If the abortion issue were a matter of ordinary politics rather than constitutional law, the argument goes, activists would be free to develop more compelling arguments for reproductive rights and to pursue a broader reproductive-health program.

Other scholars have studied the social movement activists and attorneys who helped to shape pre-Roe advocacy and to influence the Court’s decision. This project is unique, however, in offering the first explanation of the emergence, ascendancy, and persistence of crucial post-Roe choice-based claims that have defined the law and politics of abortion in the past several decades. This history suggests that Roe alone was not responsible for the emergence or the staying power of the choice framework. Since 1973, abortion-rights activists prioritized choice arguments not only because of Roe but also because of the need to respond to antiabortion tactics and to changing political opportunities. Ordinary politics reinforced rather than undermined the choice framework.

Based on this history, the Article argues that de-constitutionalizing the abortion issue would do little to dismantle the choice-based frame. At a minimum, the abortion-rights movement will have to do more to make abortion, and the women who benefit from it, more visible and sympathetic to the public. Removing the Constitution from the equation will do little to change this basic dynamic.

The full article is available here, at SSRN.