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Unpublished Paper
Battle for the Disclosure Tort: Scholars’ Untold Story
ExpressO (2012)
  • Jared A. Wilkerson, College of William and Mary

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.

  • Legal history,
  • privacy torts,
  • public disclosure of private facts
Publication Date
August 27, 2012
Citation Information
Jared A. Wilkerson. "Battle for the Disclosure Tort: Scholars’ Untold Story" ExpressO (2012)
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