Analogy in the Common Law “Man is an animal suspended in webs of significance he himself has spun.� - Clifford Geertz, Interpretation of Cultures
Friday, July 15, 2011
Themes Narrative Expertise and expert authority Validity Theory-testing Un/certainty A “spirit photograph� by William Hope
Friday, July 15, 2011
The common law Judge-made law (common law) advances by primarily by analogy Key is to tell a story and connects to earlier story (or a story that distinguishes new facts from old)
Friday, July 15, 2011
Privacy in the 19th C. Based on what we might call “confidentiality” and on trust relationships: “Confidentiality focuses on relationships; it involves trusting others to refrain from revealing personal information to unauthorized individuals.” - Richards & Solove Friday, July 15, 2011
Privacy in the 20th C. “The right to be left alone–the most comprehensive of rights, and the right most valued by a free people.”– Supreme Court Justice Louis Brandeis, Olmstead v. U.S., 277 U.S. 438 (1928) Protection against invasions by media and gossips--and also against the police
Friday, July 15, 2011
The crucial U.S. shift Came in an 1890 law review article by Warren and Brandeis Told a story focused on protection from invasion of self by gossips (newspapers, photographers, etc.) and by eventual extension, invasion by modern police agencies
Friday, July 15, 2011
“The press is overstepping in every direction the obvious bounds of propriety and of decency” “Gossip is no longer the resource of the idle and the vicious, but has become a trade” “To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.” Friday, July 15, 2011
Vile gossip and scandal spew from the press in the 1888 Puck cartoon
Reasoning by analogy Invasion of privacy is like “injuries sustained ... by an attack upon reputation or ... a violation of honor.”
Right to “intellectual and artistic property” are “instances and applications of a general right to privacy” Because these allow control over dissemination of what is mine
Friday, July 15, 2011
... to copyright “The existence of the right [does not] depend upon the nature or value of the thought or emotion...” “The same protection is accorded to a casual letter or an entry in a diary”
Friday, July 15, 2011
“No other has the right to publish his production in any form, without his consent.”
“The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.” THUS: “the existing law affords a principle which may be invoked to protect the privacy of the individual”
Friday, July 15, 2011
What do we make of this kind of evidential reasoning? Friday, July 15, 2011