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
Analogy in the Common Law
Mar 27, 2016
A quick presentation of the use of analogy in an 1890 law review article introducing a "right of privacy" in American Law
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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
Narrative
Expertise and expert authority
Validity
Theory-testing
Un/certainty
Themes
A “spirit photograph” by William Hope
Friday, July 15, 2011
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)
The common law
Friday, July 15, 2011
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
Privacy in the 19th C.
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. shiftCame 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.”
Vile gossip and scandal spew from the press in the 1888 Puck cartoon
Friday, July 15, 2011
Reasoning by analogyInvasion 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”
“No other has the right to publish his production in any form, without his consent.”
Friday, July 15, 2011
“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
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