In  December 1890, a few weeks after "The Right to Privacy," which he had penned with his former law partner, Samuel Warren, appeared in the Harvard Law Review, Louis Brandeis wrote to his fiancé, Alice Goldmark:

Of course you are right about Privacy and Public Opinion.  All law is dead letter without public opinion behind it.  But law and public opinion interact―and they are both capable of being made...Our hope is to make people see that invasions of privacy are not necessarily borne―and then make them ashamed of the pleasure they take in subjecting themselves to such invasions... The most perhaps that we can accomplish is to start a backfire, as the woodsmen or the prairiemen do.¹   

From the standpoint of the twenty-first century, when memoirs, talk shows, tabloids, interactive web sites, and myriad other modes of communication have engulfed us in a sea of personal information, it might seem that the "backfire" that Brandeis envisioned failed.  But even though "The Right to Privacy" never shut down the gossip industry, it is now heralded as the most influential law review article in American history.  Contrary to Brandeis's modest expectations, it not only galvanized public opinion in favor of privacy legislation, but also overcame initial resistance in the courts to the idea that common law protections of property could be extended to shield the private sphere. Less than a year after the article was published, in Schuyler v. Curtis, New York Judge Denis O'Brien quoted at length from Brandeis and Warren, describing their article as "an able summary of the extension of the law of individual rights, which well deserves and will repay the perusal of every lawyer."  More effusively, in 1905, legal scholar Elbridge Adams described it as "one of the most brilliant excursions in the field of theoretical jurisprudence," and, a few years later,  Harvard Law School dean Roscoe Pound declared that the essay had "done nothing less than add a chapter to our law."2

The centrality of "The Right to Privacy" in American legal history is firmly established, but exactly why the article struck such a powerful  chord in American consciousness needs to be further explored.  This edition achieves that goal in part by including full-text versions of nearly all of the landmark cases cited by Brandeis and Warren, as well as later legal opinions that have been closely associated with their work.  Likewise, taking advantage of the documentary potential of digital technologies, we have also gathered late nineteenth and early twentieth-century newspaper stories, law review articles, advertisements, and other ephemera that locate the essay within the cultural, social, and economic matrix of the cult of domesticity that consumed American society in the decades after the Civil War.  Finally, in order to provide readers, especially those encountering "The Right to Privacy" for the first time, insight into the major themes that have preoccupied scholars over the years, we have reprinted three outstanding law review articles,  Ken Gormley's "One Hundred  Years of Privacy," which surveys the evolution of privacy law during the twentieth century; Randall Bezanson's "The Right to Privacy Revisited: Privacy, News, and Social Change, 1890-1990," which outlines how ideas about the publication of personal information transformed over time; and Anita Allen and Erin Mack's "How Privacy Got Its Gender," which canvasses a broad swath of American legal history in order to illuminate how Brandeis and Warren's gendered conception of privacy shaped both legal theory and the social inequities that women have confronted within the workplace and the home.

Introduction, 1