The Process of Legal Institutionalization: How Privacy Jurisprudence Turned towards the US Constitution and the American State

Abstract

During the twentieth century, privacy evolved from an ambiguous legal idea into a defined state-centric right, while privacy claims against non-state entities became more marginalized. Whereas prior studies treat this as the direct outcome of cultural shifts or landmark interventions by legal elites, I document legal institutionalization as a three-stage process of domain formation and meaning making. Using a combination of citation network analysis and qualitative research, I show that the concept of privacy first entered the legal field when journalists raised concerns about the unauthorized use and commodification of personal data; that US jurisprudence produced two competing schools of legal thought as judges and legal scholars struggled to give substance to an abstract concept and structure to an evolving domain of judicial practice; and that privacy was consecrated as a constitutional right when state courts and the US Supreme Court selectively mobilized the language of privacy to confront the expanding reach of the American state. These findings demonstrate the processual nature of legal institutionalization, draw attention to intra-legal contestation and the implicit pluralism of American jurisprudence, and highlight an emerging distinction between the legal regimes governing bureaucratic rule and market exchanges in the early twentieth century.