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Category: History of Law

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Law Talk: Oman on Civil Cases in Church Courts

Last week I attended the annual meetings of the American Society for Legal History in Tempe, Arizona. It was a great conference and compared, say, to the AALS meetings all of the presenters had clearly actually written and thought out their presentations before hopping on the plane. In this week’s episode I am broadcasting my own presentation at the conference. In early America many religious denominations tried to move civil disputes between church members into church courts, and lately I have been going through the records of Mormon church courts to see how the dealt with contract cases. As part of that research, I’ve written a paper that looks at the development of the Mormon judiciary, why Mormons sought to bring civil litigation within the church, and why they abandoned the effort around 1900. (I put up a short, preliminary version of my paper on SSRN.) My ASLH presentation shares some of my conclusions from that paper, which will be sent off to the law reviews this spring.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

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Privacy’s Other Path: Recovering the Law of Confidentiality

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Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.

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Very Cool

It is a measure of how geeky I am, that I think that this is one of the coolest websites I have seen for quite a while: The Yearbooks, online and searchable.

There is now no excuse for failure to include citations to 13th century case law in your next article or brief.

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Roberson for the Social Networking Generation?

Picture (Flour of the Family).JPGThe New York Times has reported on an interesting case involving the alteration of a photograph for advertising purposes. According to the article, a girl was photographed by a friend at a church car wash, who uploaded the photograph onto photo-sharing site Flickr. The photo was then downloaded and altered by an Australian mobile phone company, and used for billboard advertising. The girl was portrayed in the ads as an example of the kind of “loser” pen pal that cell phone subscribers could finally “dump.” The girl has sought legal action against the Australian company under a number of theories.

This is a complex case involving a number of legal issues, including creative commons licenses and copyright law, and the application of U.S. law overseas, but I’m most interested in it as a privacy case, because the facts are strikingly similar to the seminal case of Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). In Roberson, a company used the photograph of another young woman to advertise its flour under the terrible slogan “flour of the family.” Although the New York Court of Appeals rejected the young woman’s claim that her right to privacy had been violated, the controversy that the case created resulted in the New York legislature creating a statutory right to privacy shortly thereafter. The privacy tort advocated by Samuel Warren and Louis Brandeis in their influential 1890 Harvard Law Review article “The Right to Privacy” was adopted in a variety of related contexts, but this dimension of privacy — the appropriation of likeness for commercial purposes — has been the most numerous and the least controversial. Dan Solove and I talk more about these cases (including Roberson) here, in an article that is about to go to press.

Assuming that some version of the appropriation tort is applicable to the Australian company (and that’s a fairly big assumption, I think), this case looks to be a straightforward application of the appropriation tort. The basic theory of the tort is that it is unreasonable to allow businesses to use photographs of unwilling subjects for advertising or other commercial purposes. The injury remedied is an emotional one – the hurt feelings stemming from the unwanted exposure of one’s likeness to the public, especially where (as here) it is an unflattering likeness. There are two points worth noting, though.

First, the theory of the appropriation tort contains a good helping of gendered notions of separate spheres. I think it’s no coincidence that most of the early successful privacy litigants were female, as courts recognized the cause of action to preserve Victorian and Edwardian notions of women as delicate beings whose sensibilities could be hurt by too much publicity. I think that even if we put archaic notions of separate gender spheres to one side, the appropriation tort is justifiable, but under a theory about what sorts of commercial activities are reasonable and unreasonable.

The second point is the lurking spectre of the First Amendment in all of this. Courts in 1902 (indeed for most of the twentieth century) rejected any idea that there was a First Amendment interest in commercial activity or even advertising. But with the rise of commercial speech doctrine since the 1970s (ironically first as an offshoot from the constitutional right of privacy to protect abortion services advertising), the commercial world of advertising has become enmeshed with the First Amendment. Although there are First Amendment issues raised by the other privacy torts, the appropriation tort in its core case does not threaten First Amendment values. The right of commercial advertising is founded not on notions of individual expression but on the need of consumers to receive potentially valuable information about new products. Misappropriation of pictures does not threaten that interest at all. If we take First Amendment arguments seriously in this context, it will become difficult to see how there is not a First Amendment right to engage in other kinds of commerce – we will have created (as I argued here) a kind of First Amendment Lochner.

In any event, the Flickr photo case shows that there seem to be legs in the old appropriation tort yet, and it will be interesting to watch this case as it develops.

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Law Talk: Al Brophy on Slavery, Reparations, and Institutional Responsibility

epstein.jpgIn this week’s episode of Law Talk, we hear from Professor Al Brophy of the University of Alabama Law School. In addition to his fame as a Co-Op guestblogger, Al is a legal historian with a special interest in issues of slavery and race in American law. Al is also interested in issues surrounding debates over reparations and apologies for slavery. In this podcast, he discusses how universities and colleges with links to slavery might deal with these issues, using the example of my own employer, The College of William & Mary.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

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Orwellian Surveillance (Quite Literally)

Orwell.jpgWhen people think of surveillance, they frequently think of George Orwell, the English writer whose depictions of surveillance in his novel Nineteen Eighty-Four continue to resonate and inform our cultural and legal understandings of privacy. Orwell’s critics (and even some of his friends) thought he was a bit paranoid, but recent documents released by the British government suggest he had a point. The documents show that Orwell was himself monitored by the British government’s Special Branch police for over a decade because he was suspected of being a communist. A particularly amusing note in one of the documents explained that, referring to Orwell, “This man has advanced communist views … He dresses in a bohemian fashion both at his office and in his leisure hours.” The documents also reveal that Orwell apparently had tattoos on some of his knuckles, which he apparently picked up as a young man living in India.

Orwell was being watched because he was feared to be a communist, a charge that we know (and the government finally figured out after watching him for a decade) to be nonsense. But watching people because they were communists was considered perfectly acceptable in the context of the communist era. One wonders what (and who) is in the surveillance files currently being created by Western governments as part of the war on terrorism. Unfortunately, absent a leak or the extended passage of time, we may never know.

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Law Talk: Richard Epstein and the Classical Liberal Constitution

epstein.jpgIn the latest episode of “Law Talk,” I speak with Professor Richard Epstein of the University of Chicago and Stanford’s Hoover Institute (currently visiting at NYU). Epstein, of course, is known as one of the most articulate and prolific academic defenders of libertarian or classical liberal approaches to the law. In this episode, he discusses one of his current projects, a volume to be published by Basic Books on the classical liberal history of the constitution. Enjoy!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

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Intellectual Privacy

Late last week, I finally sent my latest article out to the law reviews. It’s called “Intellectual Privacy,” and it’s about the ways that certain kinds of privacy protections advance, rather than inhibit, First Amendment values. I’m really excited about the project, which I believe has something useful to say about both a number of recent legal issues (involving the War on Terror and also the War on Pornography) as well as our understandings of First Amendment theory. I’m hoping to post it on SSRN shortly, but in the meantime, here’s the abstract:

The use of information about intellectual activity has become central to a wide variety of modern legal problems. In this paper, I offer a theory of intellectual privacy, the critically-important interest lurking beneath the surface of these disputes. Intellectual privacy refers to the zone of protection necessary for free thought and cognition in which individuals can make up their minds about a wide variety of issues both important and trivial. Unlike many other notions of privacy, which are in tension with free speech, intellectual privacy safeguards critical First Amendment values. First, I show how intellectual privacy has been underappreciated in a number of contemporary disputes, including warrantless wiretapping and data mining by government, private-sector uses of personal information relating to intellectual activity, and the introduction of reading habits as evidence in criminal trials. Second, I present a theory of intellectual privacy having four elements – the freedom of thought and belief, spatial privacy, the right of intellectual exploration, and the confidentiality of communications. Third, I show how and why intellectual privacy should be an essential part of our First Amendment theory, and suggest some ways in which it could be better incorporated into both constitutional doctrine and the fabric of our legal culture more generally.

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Virginia and the Birth of Corporate Law

ViriginiaBill.jpgI enjoy reading local history, and one of the great advantages of living a mile from Jamestown, Virginia is that lots of people have written about my local history. In addition to stories of starving colonists and massacred (and massacring) Indians, Jamestown is also a story of corporate law. The colonization of America was not a government funded operation. Rather, it was an exercise in high risk venture capital, funded by private investors in the hope of big profits. In the end, of course, the Virginia Company failed to pay big and the government ultimately bought the investors out, taking over the colony, somewhat like a bail-out of a hedge fund. Along the way, Virginia made some interesting corporate law.

The company’s third charter, in particular, is interesting. Virginia was organized by a royal charter that gave the company a corporate existence, set up its governing structure, and defined the scope of its business. Originally, the number of investors was sharply limited and the governing structure was largely independent of their control. The company found it necessary, however, to return to king and parliament to tinker with their charter. The third charter was provoked by the desire of the company to extend its jurisdiction to take in most of the western Atlantic. In particular, they wanted control of Bermuda, where a Virginia-bound ship had wrecked, living about 120 colonists to live on the island for nearly a year while they built a ship to take them to Virginia. (The incident served as the inspiration for Shakespeare’s play The Tempest.) The new charter, however, did several things beyond giving the company control over “The Devil’s Isles.”

First, it massively broadened the investor base of the company, essentially creating a market in Virginia Company shares where none had existed before. Second, it revamped the governance structure so that the board of governors was elected by the shareholders rather than being appointed by the crown. Thirdly, and most interestingly in my view, it dispensed with the oath of supremacy for investors. This meant that Catholics would be allowed to buy shares in good conscience. The last move is interesting because while the colony remained militantly Protestant and anti-Catholic (or at least anti-Spanish), the innovation does mark the beginning of a shift toward a view of commerce as a realm in which religious differences need not be an impediment to peaceful cooperation. A small move, to be sure, but done several decades before the Peace of Westphalia, it was a not insignificant innovation.

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Benjamin Carp: Rebels Rising

rebels.jpgIt is a Monday, and I thought you guys might be interested in some cross-disciplinary posting. (My Friday fun post having left you “baffled”.) So I invited Benjamin L. Carp, an Assistant Professor of History at Tufts University, to write up a little review of his new (and well-received) book from Oxford Press, Rebels Rising: Cities and the American Revolution. Ben has previously written articles on firefighters (sub. req.), nationalism (sub. req.), and the destruction of New York City (sub. req.) Ben’s comments on the book, which may intrigue ahistorical law prof types enough to motivate a purchase, follow after the jump.

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