Public Families

Here is the abstract of this article as posted on SSRN:

This article uses the Murdoch trust litigation – the battle to change the terms of the trust to ensure that the media empire would pass solely into the hands of the oldest, extreme right wing leaning son – as an entry point into a conversation about the uses and abuses of privacy in American law.  This article makes two new contributions to current discussions of privacy law.  First, building on Reva Siegel’s concept of “privacy talk,” this article makes the first full-fledged distinction between actual privacy, famously defined as the right to be left alone, and the ideology of privacy, the deployment of the emotional and political valence of the idea of privacy to shield the affairs of the wealthy from public scrutiny and to expose the personal lives of those progressively lower on the income scale to state surveillance and control. 

Second, while there have been critiques of the use and abuse of privacy at both ends of the wealth spectrum, what has escaped notice so far is that it is the deployment of privacy ideology all along the wealth spectrum as a whole that entrenches and re-instantiates social and political power relations.  At the High Net Worth (HNW) end of the spectrum, privacy ideology serves to protect from public view the deployment of wealth to affect to lives of everyone in society by shaping political outcomes.  At the low end, it works to disempower those with mid- to low- wealth, and to stigmatize and control those further down the spectrum who need public assistance.  These two processes work together to solidify patterns of subordination.  This range of privacy allocation also spans the distance between the exercise of political power and subjection to it, and must be understood as a whole.        

            The fight over the Murdoch trust, and the increasing legal secrecy enfolding trusts in the United States offer an excellent example of this process at the HNW end of the spectrum.  The increasing willingness of legislatures and courts to enable the concealment of trusts and trust matters from public access is one of the reasons the U.S. is emerging as “the world’s largest tax haven.” Few may find this a source of pride, but it’s important to understand that this secrecy constitutes one band in a privacy spectrum spanning American society that allocates privacy and imposes surveillance according to wealth.