PANEL: The Role of History in Indian Law Saturday, October 24, 8:30-10:00 Chair: Patricia Monture-Angus, Department of Native Studies, University of Saskatchewan Law  without Context Vine S. Deloria, Jr., Department of History, University of Colorado This paper will discuss the use and misuse of history in recent federal court decisions. Recovering Native Visions in the Content of Indian Law Gloria Valencia Weber, University of New Mexico School of Law. Professor Weber will draw upon her experience as a leader in developing Indian Law programs in American law schools and teacher and scholar on the different ways in which lawyers and historians have used history in making Indian Law and on the varying outcomes that the use of history has had on the substantive development of the field. Comment: Frank Pommersheim, University of South Dakota School of Law

From Spirit to Psyche: The Emergence of Invasion of Privacy as a Medical Harm
Jonathon Kahn, Department of History, Bard College

This paper is part of a larger work exploring the development of the concept of "appropriation of identity" in American tort law during the twentieth century. Since the turn of this century, the American legal system has recognized a person's "identity" itself as something that could be stolen, or "appropriated"; (not racial identity, or gender identity, but simply identity). Grounded in the common law right to privacy, the tort of appropriation of identity involves the use, without consent, of another person's name or likeness for commercial gain. That the law recognizes so amorphous a concept as "identity" is in itself remarkable. Even more remarkable is the degree to which scholars and practitioners have overlooked its place in the history of American law. My work takes the law at its own word: "identity." I examine what individual litigants, courts, legislatures, and commentators have meant when they explicitly argued for or actually recognized rights in something they called identity. This paper begins by examining the emergence of the tort of appropriation of identity during the first third of this century as a dignitary tort grounded in genteel bourgeois ideals of civility and honor. It then focuses in particular on the 1930s, a time when the tort of invasion of privacy had finally gained widespread acceptance. At this historical moment, we see the emergence of a new tort, "intentional infliction of mental distress," most famously articulated by William Prosser in a 1939 law review article. This new tort soon become conflated with certain aspects of invasion of privacy. Whereas the original tort of invasion of privacy assessed the harm of such acts as appropriation of identity by reference to local community norms of civility (often defined implicitly by local elites), the new psychologized version of the tort called upon a newly emerging community of professional medical experts to use supposedly transcendant norms of science to identify any specific mental harm to a particular individual. Under the old privacy regime, a jury could find an objectively perceived breach of civility as sufficient to establish a cause of action. Under Prosser's new tort of intentional infliction of mental distress, the plaintiff would additionally have to establish individual subjective psychological harm according to expert criteria. This move from objective, community-based, normative perceptions of injury to subjective, individual, expertly evaluated harms marks a significant shift both in the emergence of new forms of authoritative discourse and in the characterization of privacy as a purely individual concern that often implicated medical issues. In this, we see also the seeds for later constitutional assessments of privacy in the realm of reproductive autonomy as a matter for expert medical determination rather than as a product of local community norms.

Comment: Arthur F. McEvoy, University of Wisconsin Law School
Norman L. Rosenberg, Department of History, Macalester College