Holbo on Modernism's Others: Literary Realisms in an Age of Incomplete Emancipation @asuEnglish

Christine Holbo, Arizona State University, has pubished Modernism’s Others: Literary Realisms in an Age of Incomplete Emancipation in American Literary History.

More here from the publisher's website.

Kuersten on The Privacy Effect: A Third Amendment Historiography @KuerstenAndreas

Andreas Kuersten, Georgetown University, Center for Clinical Bioethics, has published The Privacy Effect: A Third Amendment Historiography. Here is the abstract.

This piece tracks early appreciations of privacy, scholarship addressing and interpreting the Third Amendment, and the effect on interpretations of the Third Amendment of twentieth-century court treatments of the Third Amendment linking it to the constitutional right to privacy.

Download the article from SSRN at the link.

Jessica Lake's New Book on the Beginnings of the Common Law Right to Privacy

Jessica Lake is publishing The Face That Launched a Thousand Lawsuits: The American Women Who Forged a Right to Privacy (Yale University Press, 2016). Here is a description of the contents from the publisher's website.

Drawing on a wealth of original research, Jessica Lake documents how the advent of photography and cinema drove women—whose images were being taken and circulated without their consent—to court. There they championed the creation of new laws and laid the groundwork for America’s commitment to privacy. Vivid and engagingly written, this powerful work will draw scholars and students from a range of fields, including law, women’s history, the history of photography, and cinema and media studies.

Colman on Warren and Brandeis' "The Right To Privacy" and Samuel Warren's Family Concerns

Charles E. Colman, New York University School of Law and University of Hawai'i School of Law, has published About Ned at 129 Harvard Law Review Forum 128 (2016). Here is the abstract.

In this essay, I explore the possibility that the storied article "The Right to Privacy," 4 Harv. L. Rev. 193 (1890), might have come into existence in part because of lead author Sam Warren's powerful drive to protect his younger siblings -- and, in particular, his gay brother Ned. For reasons both obvious and less intuitive, Sam might have viewed the article as a promising vehicle for shielding Ned and the rest of the Warren family from potentially devastating journalistic and public scrutiny of Ned's sexuality. Viewed in this light, the article acquires a special resonance in this, its one hundred twenty-fifth anniversary. Rhetoric central to the piece can be traced, link by link, case by case, to Supreme Court decisions that collectively established a multifaceted constitutional right to personal autonomy. The article can arguably be understood as a catalyst for the series of events culminating in the Supreme Court's 2015 recognition, in Obergefell v. Hodges, of a constitutional right to same-sex marriage. If "The Right to Privacy" is indeed about Ned, even in part, then what originated as an effort to protect one gay man might, quite remarkably, be a 125-year-old precursor of the Court's decision securing the protection of a fundamental right for gay people throughout the nation.

Download the essay from SSRN at the link.

Rethinking Privacy Using Feminism--and Spinoza

Janice Richardson, Monash University Faculty of Law, is publishing Spinoza, Feminism and Privacy: Exploring an Immanent Ethics of Privacy in volume 22 of Feminist Legal Studies (2014). Here is the abstract.

In this article I explore the usefulness of Spinoza’s ethics for feminism by considering ways in which it allows feminists to rethink privacy. I draw upon some of Spinoza’s central ideas to address the following question: when should information be classed as private and when should it be communicated? This is a question that is considered by the common law courts. Attempts to find a moral underpinning for such a tortious action against invasions of privacy have tended to draw upon Kant’s categorical imperative. In contrast, I want to consider how Spinoza provides an immanent ethics that reconfigures how privacy is understood.

Download the article from SSRN at the link.

The Rights of Privacy and Publicity

Samantha Barbas, SUNY Buffalo School of Law, has published Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015). Here is a description of the contents from the publisher's website.

Americans have long been obsessed with their images—their looks, public personas, and the impressions they make. This preoccupation has left its mark on the law. The twentieth century saw the creation of laws that protect your right to control your public image, to defend your image, and to feel good about your image and public presentation of self. These include the legal actions against invasion of privacy, libel, and intentional infliction of emotional distress. With these laws came the phenomenon of "personal image litigation"—individuals suing to vindicate their image rights. Laws of Image tells the story of how Americans came to use the law to protect and manage their images, feelings, and reputations. In this social, cultural, and legal history, Samantha Barbas ties the development of personal image law to the self-consciousness and image-consciousness that has become endemic in our media-saturated culture of celebrity and consumerism, where people see their identities as intertwined with their public images. The laws of image are the expression of a people who have become so publicity-conscious and self-focused that they believe they have a right to control their images—to manage and spin them like actors, politicians, and rock stars.

 

The Lawyer's Backstory: Samuel Warren and the Right To Privacy

Charles E. Colman, New York University School of Law & NYU Steinhardt Department of Visual Culture, Costume Studies, is publishing The Lawyer and the Aesthete in volume 129 of the Harvard Law Review Forum (December 2015). Here is the abstract.

In 1890, the Harvard Law Review published an article, co-authored by Boston law firm partners Samuel Warren and (future Supreme Court Justice) Louis Brandeis, titled "The Right to Privacy." The authors argued that existing legal authority provided a basis for the courts to recognize a new, increasingly necessary, cause of action for the invasion of individual privacy. Today, "The Right to Privacy" is widely recognized as one of the most influential -- if not the most influential -- law review article ever written, having played a key role in the Supreme Court's conceptualization of a constitutionally grounded right to personal autonomy. Because "The Right to Privacy" remains such an important article, more than a century after its publication, various scholars have set out to reveal the "backstory" of the piece. In the 2011 book American Property, legal historian Stuart Banner summarized that literature as follows: "The traditional explanation of the origin of 'The Right to Privacy' emphasizes Warren's irritation with sensationalist press coverage of his daughter's wedding." As Banner correctly observed, this traditional account cannot be accurate, as Warren's daughter was only six years old when the article was written. Law professor Amy Gajda took a different tack in her 2010 article, "What If Samuel D. Warren Hadn't Married a Senator's Daughter? Uncovering the Press Coverage that Led to The Right to Privacy." Gajda began by noting that "what truly provoked Warren, who is thought to be the moving force behind the article, has remained a mystery." Like other scholars who have written on the topic, Gajda focused on Warren's familial circumstances to shed light on Sam's motivation for taking the initiative on the influential piece. Departing from previous scholarly explanations, Gajda concluded that Warren's championing of privacy in the 1890 article was driven by his irritation at the invasive journalistic coverage of his own 1882 "engage[ment] to Miss Mabel Bayard, daughter of a high-profile politician on the national stage." In my view, Gadja was correct to pinpoint Warren's strong feelings about family as a central factor in the backstory of the article, but overlooked the crucial, idiosyncratic between Sam and his siblings. As I researched 1880s New England society for a recent project, "Design and Deviance: Patent as Symbol, Rhetoric as Metric," I learned that Samuel Warren had a younger brother, Ned, whose homosexuality was just under the public radar in Boston at the time -- a volatile period when scientists first proclaimed their "discovery" of homosexuality as a fixed identity trait (and purported sign of "degeneracy," illness, and even insanity.) This announcement led to what many Anglo-American historians have called a "homosexual panic" throughout England and the East Coast of the United States, resulting in (among other things) the passage of the 1885 English law under which famed playwright Oscar Wilde was soon prosecuted, convicted, and sentenced to hard labor for "indecency." Wilde and his family were internationally shamed; when the playwright was released from prison, he lived in exile until the toll of his prison years caused his premature death.

The article is not available from SSRN.

Surveillance and Fiction

Sam Frank discusses how surveillance leads to "noveliz[ation of] our lives." He suggests turning to literature to understand this phenomenon--specifically to novels such as Joshua Cohen's Book of Numbers, Dave Eggers' The Circle, or the classic The Trial, by Franz Kafka. More here at The Intercept.

Privacy, Security, and Literature

Daniel Solove (George Washington University Law School) is compiling a list of privacy and security related novels. His first five selections?

Franz Kafka, The Trial (published in 1925 in German, first English translation published in 1937).

George Orwell, Nineteen Eighty-Four (or 1984) (published 1949).

Aldous Huxley, Brave New World (1932).

Herman Melville, Billy Budd (first published 1924, but written in 1888-1891, and left unfinished at Melville's death).

Heinrich Böll, The Lost Honor of Katharina Blum (published in 1974, first English translation 1974).

Professor Solove invites you to email suggestions to him or to post them in the comments section.

U. S. Privacy Law After One Hundred Twenty Years

Robert Sprague, University of Wyoming, College of Business, Kevin Grauberger, University of Wyoming, and Nicole Barberis, Bloomberg LP, have published One Hundred Twenty Years of U.S. Privacy Law Scholarship: A Latent Semantic Analysis. Here is the abstract.

This paper reports results from a research project aimed at identifying fundamental privacy law principles derived from the writings of legal scholars and commentators using probabilistic topic modeling, which is comprised of a suite of algorithms that attempt to discover hidden thematic structures in large archives of documents. Topic modeling algorithms are statistical methods that analyze the words of texts to discover topics (themes) contained within, how those topics are connected to each other, and how they change over time. A latent Dirichlet allocation process, which identifies sets of terms that more tightly co-occur, is incorporated into the topic modeling analysis to identify words most closely associated with each identified topic. The latent Dirichlet allocation therefore provides insight into the context in which each identified topic occurs. Our analysis reveals that privacy law in the United States comports most closely with the Georgia Supreme Court’s 1905 description of privacy from the seminal case Pavesich v. New England Life Insurance Company: “the right of a person to be secure from invasion by the [government or] public into matters of a private nature.”

Download the paper from SSRN at the link.

Balancing Privacy and Free Speech In "Time, Inc. v. Hill" (1967)

Samantha Barbas, State University of New York (SUNY), Buffalo, Law School, is publishing When Privacy Almost Won: Time, Inc. v. Hill (1967) in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract.

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against the press for the publication of nondefamatory private facts.

The Hill case represented the culmination of a longstanding tension in American law. Since the early 20th century, states had recognized a “right to privacy” that permitted the victims of unwanted, embarrassing media publicity to recover damages for emotional distress. The privacy tort was praised for offering protection against an exploitative press, and at the same time decried by the publishing industry as an infringement on its freedoms. In the 1950s and 60s, with the growth of the media, an increase in privacy actions, and large judgments against the press, the privacy-free press conflict raised contentious debate.

Privacy and free speech were charged issues in American culture more generally. In an era that saw the introduction of computers, large-scale data collection, and increasing government surveillance, “privacy” emerged as a major national focus. Free expression rights also assumed new meaning and urgency in the turbulent social climate of the postwar era. These concerns were reflected in the Supreme Court’s decisions from this time. New York Times v. Sullivan (1964) held that the press had an expansive right to report on the public conduct of public officials, including a right to publish falsehoods, unless they were made with reckless disregard of the truth. One year later, Griswold v. Connecticut declared a constitutional right to privacy, protected by “penumbras” and “emanations” of guarantees in the Bill of Rights.

Time, Inc. v. Hill cast these freedoms in opposition. The case called upon the Warren Court, the Sullivan Court and the Griswold Court, to reconcile the two constitutional rights it had championed and created. A majority led by Justices Warren and Fortas initially voted to uphold the Hills’ claim. But after a bitter fight, votes switched, and a narrow majority voted for Time, Inc. The opinion by Justice Brennan rejected the notion of a constitutional right against unwanted publicity and declared an expansive view of the First Amendment as protection for all “newsworthy” material. The right of the press to publish on “matters of public interest,” from political reporting to articles about Broadway plays to movies and comic books, outweighed the privacy interests of unwilling subjects of media publicity.

This article explains how privacy almost won -- how the Supreme Court almost recognized a constitutional right to privacy against the press -- and why it didn’t. Time, Inc. v. Hill marked a crossroads, a moment when the law could have gone in one of two directions: towards privacy and a measure of press restraint, or towards a freer -- if not at times unruly and uncivil -- marketplace of ideas. The Court chose the latter, and we have lived with the consequences since.

Download the article from SSRN at the link.

Misappropriation in a Hemingway Novella?

Enrique Guerra-Pujol, University of Central Florida, College of Business Administration, and Pontifical Catholic University of Puerto Rico has published Misappropriation and The Old Man and the Sea. Here is the abstract.

We consider whether the great writer Ernest Hemingway may have committed the tort of misappropriation when he published his masterpiece “The Old Man and the Sea.” In summary, Hemingway either borrowed or stole (depending on one’s perspective) the following elements of his timeless novella: (i) the actual story itself, (ii) the “back-story” and other biographical details of the main character of the story, Santiago, as well as (iii) Santiago’s ascetic persona and physical characteristics. Although we concede that Hemingway combined these ingredients into a new and original artistic work, the question we are considering in this paper is whether Hemingway’s creative combination of such elements is enough to negate a claim of misappropriation under current U.S. or Cuban law. (We must consider Cuban law in addition to U.S. law since Hemingway lived in Havana, Cuba when he wrote and published “The Old Man and the Sea.”) That is, if Hemingway were writing “The Old Man the Sea” today, could he be liable under the common law doctrine of misappropriation or even under Cuban law?

Download the paper from SSRN at the link.

"This Kiss, This Kiss..."

Hector Lewis MacQueen, University of Edinburgh, School of Law, has published Ae Fond Kiss: A Private Matter? in Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry 473 (Oxford 2013). Here is the abstract.

The Ben Beinart Memorial Lecture given at the University of Cape Town on 16 April 2013. The paper discusses the 1804 case of Cadell & Davies v Stewart, in which the existence of rights to publish or to prevent publication of private letters between the poet Robert Burns and his close friend Agnes McLehose was ventilated at length by the advocates and judges appearing in the court. The paper assesses the evidence for what really happened between Burns and Agnes, and discusses the contemporary significance of the court's decision to prevent publication.

Download the essay from SSRN at the link. 

A History of the Privacy Profession

Andrew Clearwater, University of Maine School of Law, and J. Trevor Hughes, International Association of Privacy Professionals, have published In the Beginning...An Early History of the Privacy Profession, at 74 Ohio State Law Journal 897 (2013). Here is the abstract. 

Privacy is a concept that has existed in various forms and degrees, for much of human history. However, the origin of information privacy as a compliance, risk management, and operational concern has been much more recent. This new field, and the professionals who work within it — the privacy profession — did not exist broadly until the past decade. From essentially no active professionals in the 1970s and 1980s, the privacy profession has grown to at least 13,000 people working on managing information privacy within their organizations. As the information economy continues to grow — pushed by the breath-taking speed of technological development, cloud computing, big data, and emerging uses for exponentially increasing stores of data — it is reasonable to expect that the privacy profession will grow. The exact trajectory of the privacy profession is difficult to predict. Management of privacy is, today, a well-established and important function, and it is obvious that the professionals who work in this field will grow in number and prominence in the coming years.
Without knowing where we’ve come from, we can’t know where we are going and so it is appropriate for us to document the nascent years of the privacy profession. We expect that, at some point in the future, scholars will seek to understand how the field of privacy management emerged, who served as a catalyst for the growth of the field, and what the important milestones for the privacy profession were as the turbulence of the early days of the information economy played out. While this history is most certainly global — the privacy profession has its earliest roots in Germany in the 1970s — we have chosen to investigate this change where we understand it best and where the profession has appeared to grow the most, the United States. We have also limited our focus to the role of the privacy professional and privacy lawyer. There are certainly public policy leaders and advocates in the privacy field who deserve well-documented histories. Through these lenses, we offer a history of privacy becoming a profession.

Download the article from SSRN at the link. 

Are We In Kansas? Free Love and the Right of Privacy In State v. Walker

Charles J. Reid, Jr., University of St. Thomas School of Law (Minnesota) has published The Devil Comes to Kansas: A Story of Free Love and the Law as University of St. Thomas Legal Studies Research Paper No. 11-26.

State v. Walker (1887) is an important but hitherto neglected landmark case in the development of the right of privacy. The case involved the "autonomistic" or "free-love" marriage of Edwin C. Walker and Lillian Harman, daughter of Moses Harman, the radical newspaperman.

Edwin and Lillian, who rejected state control over marriage, proclaimed themselves married in the fall of 1887, although they declared that their union was neither permanent or exclusive. Prosecuted for illegal cohabitation because of their refusal to obtain a marriage license, they and their defenders developed a vocabulary that would profoundly influence the future path of American law.

Their supporters in the radical press began to speak of the right of women to control their own bodies, woman's right to reproductive autonomy, and a right of sexual privacy. Indeed, it was in the midst of this controversy that the expression "freedom of choice" was used, probably for the first time, in its modern meaning by Lillian Harman writing from prison.

The Kansas Supreme Court, which ruled on the appeal of their convictions, was, in contrast, a deeply conservative and Christian group of men who were publicly known for their religious fidelity and who brought their religious feelings to bear in the case.

Thanks to the survival of both a substantial body of newspapers and the personal papers of the three justices who ruled on the appeal, it is possible to reconstruct a vivid account of this first skirmish in the American culture wars.

Download the paper from SSRN at the link.