Friday, December 12, 2008

Kent on the Common Origins of Property Rights and Privacy Rights in Georgia

Pavesich, Property and Privacy: The Common Origins of Property Rights and Privacy Rights in Georgia is a new article by Michael B. Kent Jr., John Marshall Law School (Atlanta). It is forthcoming in the John Marshall Law Journal. Here's the abstract:
Many modern-day Americans think about legal rights in a dualistic fashion. "Personal rights" fall on one side of the divide, while "property rights" fall on the other, and these categories of rights often are deemed to be separate and distinct. This essay, which introduces a symposium on governmental interference with privacy and private property, seeks to moderate such dualistic thinking (at least with regard to the two categories of rights at issue) by showing the common origins of the right to privacy and the right to property as they have developed under Georgia law.
The essay focuses on the reasoning used by the Georgia Supreme Court in its 1905 decision in Pavesich v. New England Life Insurance Company, the first decision by a court of last resort to recognize privacy as a specific, remediable common-law right. Included in the Pavesich opinion are allusions to natural law and social compact theory, references to Blackstone and his conception of absolute or fundamental rights, and the use of precedent and language littered with deep-rooted, property-based associations. A careful evaluation of these different elements of the court's reasoning, in light of both prior and subsequent authority, demonstrates the close philosophical and practical connections between privacy rights and property rights. Moreover, these connections help demonstrate that the dichotomy between personal rights and property rights is not as clear as it might appear.