Dan Solove writes:
I recently posted on SSRN a draft of my forthcoming article (with Professor Neil M. Richards of Washington University School of Law). The piece is called Prosser’s Privacy Law: A Mixed Legacy, 98 California Law Review __ (forthcoming 2010). It was written as part of a symposium “Prosser’s Privacy at 50.”
This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.