Ofer Raban (University of Oregon - School of Law) has posted Capitalism, Liberalism, and the Right to Privacy (Tulane Law Review, Vol. 86) on SSRN. Here is the abstract:
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The constitutional right to privacy is a doctrinal mess. The United States Supreme Court appears incapable of articulating a coherent underpinning to this important line of cases, or - more likely - is simply unwilling to do so. And yet there is an obvious candidate for that job: the philosophy of liberalism. But liberalism is a notoriously complicated and contested philosophy. Thus, this Article proposes a succinct and functional articulation of liberalism, which it pursues through an analogy with the more familiar theory of capitalism. The Article then applies the ensuing framework to Supreme Court cases dealing with the right to privacy. As we shall see, the Court’s failure to follow liberal principles lies at the heart of its inconsistencies. Greater understanding of liberalism, and greater willingness to respect this political theory so deeply rooted in American history and tradition, could bring much needed coherence to this body of constitutional law.
