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Privacy’s Other Path: Recovering the Law of Confidentiality

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Neil M. Richards & Daniel J. Solove, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Georgetown Law Journal __ (forthcoming 2007)

  • “The article examines a puzzling and fascinating issue in the development of privacy law. According to the conventional wisdom, Samuel Warren and Louis Brandeis created the right to privacy in their 1890 article. While in America, several privacy torts arose in nearly all jurisdictions in response to the article, in England, the Warren and Brandeis “right to privacy” was staunchly rejected. Instead, a law of confidentiality arose in England, which protects privacy in a very different manner than the Warren and Brandeis approach. Ironically, the law in American and England arose from the very same sources. How could such different bodies of law emerge from the same foundation? This piece is designed to be an accessible historical and comparative discussion of American and English privacy law. This topic has been relatively unexplored in America, and there are some profound implications.”
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