Pragmatism and Privacy

My paper, “Pragmatism and Privacy,” is now available online at the NYU Journal of Law & Liberty’s website. In the paper, I demonstrate the influence of legal pragmatism on the development of Fourth Amendment privacy doctrine and, towards the end of the paper, I have the opportunity to apply some of Tara Smith’s criticisms of Justice Scalia’s Originalist methodology. (You may also be interested to read an article appearing in the same issue: Prof. Randy Barnett’s article on why the Obamacare individual health insurance mandate is unconstitutional.) Enjoy!


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2 responses to “Pragmatism and Privacy

  1. As a non-scholar, I only read some of your fine paper–stopping to offer this thought: rights imply boundaries among individuals that can only be breached via mutual consent, and within this relationship is where privacy can be objectively found (to varying degree); in other words, privacy cannot be separated from rights (and vice-versa) which is probably why our Founding Fathers, who were logical men, felt no need to explicate it within the Bill-of-Rights. I’m interested in your thoughts on this thought.

  2. Jim, thanks for taking the time to read my paper!

    There are several problems with defining a distinct right to privacy, but one of the biggest ones (and perhaps the one that gives rise to the others) is the fact that it’s not objective. I have in the past compared protecting something because it’s “private” to protecting it because it’s “luxurious.”

    To some extent my own view of privacy follows that of the so-called “reductionists,” who observe that, in all cases where privacy should be protected by the law, the right which is really at stake is either property or contract. In other words, we can “reduce” legal protection for privacy to protecting our rights to property and contract because the way one protects states of privacy is by means of exercising these other rights. Protection for privacy, if based on property and contract, thereby becomes objective, and we can identify certain physical acts which, if performed by one person, violate the rights of another.

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