Privacy and the Limits of Law
![handle is hein.journals/ylr89 and id is 441 raw text is: The Yale Law Journal
Volume 89, Number 3, January 1980
Privacy and the Limits of Law
Ruth Gavisont
Anyone who studies the law of privacy today may well feel a sense of
uneasiness. On one hand, there are popular demands for increased
protection of privacy, discussions of new threats to privacy, and an
intensified interest in the relationship between privacy and other
values, such as liberty, autonomy, and mental health.' These demands
have generated a variety of legal responses. Most states recognize a
cause of action for invasions of privacy.2 The Supreme Court has
declared a constitutional right to privacy, a right broad enough to
protect abortion and the use of contraceptives.3 Congress enacted the
Privacy Act of 19744 after long hearings and debate. These activities5
t Visiting Associate Professor of Law, Yale Law School. This Article develops some of
the themes of my doctoral thesis, Privacy and Its Legal Protection, written under the
supervision of Professor H.L.A. Hart. Much of the inspiration of this piece is still his.
I am grateful to Bruce Ackerman, Bob Cover, Owen Fiss, George Fletcher, Harry Frank-
furt, Jack Getman, Tony Kronman, Arthur Leff, Michael Moore, and Barbara Underwood,
who read previous drafts and made many useful comments.
I. The best general treatment of privacy is still A. WEsTIN, PRIVACY AND FREEDOm
(1967). For treatment of a variety of privacy aspects, see NoMos XIII, PRIVACY (R. Pen-
nock & J. Chapman eds. 1971) (Yearbook of the American Society for Political and Legal
Philosophy) [hereinafter cited as Nomos].
2. W. PROSSER, THE LAW OF TORTS 804 (4th ed. 1971).
3. Roe v. Wade, 410 U.S. 113, 152-55 (1973) (right to privacy cited to strike down
abortion statute); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (right to privacy includes
right of unmarried individual to use contraceptives); Griswold v. Connecticut, 381 U.S. 479,
484-86 (1965) (right to privacy includes right of married couple to use contraceptives). See
generally Richards, Unnatural Acts and the Constitutional Right to Privacy: A Moral
Theory, 45 FORDHAM L. REV. 1281 (1977); Comment, A Taxonomy of Privacy: Repose,
Sanctuary, and Intimate Decision, 64 CALIF. L. REV. 1447 (1976) (developing constitutional
right to privacy).
4. 5 U.S.C. § 552a (1976). For a discussion of the privacy exception to the Freedom of
Information Act, 5 U.S.C. § 552(b)(7)(C) (1976), see J. O'REILLY, FEDERAL INFORMATION
DISCLOSURE: PROCEDURES, FORMS AND THE LAW §§ 20.01-21.10 (1977); Cox, A Walk Through
Section 552 of the Administrative Procedure Act: The Freedom of Information Act; The
Privacy Act; and the Government in the Sunshine Act, 46 U. CIN. L. REv. 969 (1978).
5. Several constitutional and statutory provisions explicitly recognize the right to
privacy. See, e.g., CAL. CONST. art. I, § 1 (1974 amendment recognizing, inter alia, right to
privacy); PRIVACY PROTECTION STUDY COMM'N, PERSONAL PRIVACY IN AN INFORMATION
SOCIETY (1977) (report on various aspects of privacy in U.S. with recommendations for
additional protection of privacy).](ViewImageLocal?handle=hein.journals/ylr89&div=29&collection=journals&method=preview&ext=.png&size=3)
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