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 Introduction 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 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 important law review article in American history. Contrary to Brandeis's modest expectations, it galvanized public opinion in favor of privacy legislation and 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." In 1905, Elbridge Adams hailed it as a "brilliant excursion...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." Summarizing the flood of legal scholarship that followed, William Prosser observed in 1941 that "no other tort has received such an outpouring of comment in advocacy of its bare existence."2 It is, therefore, not surprising that Harry Kalven began 1 Louis Brandeis to Alice Goldmark, December 28, 1890, Letters of Louis D. Brandeis, Volume One: Social Reformer, edited by Melvin I. Urofsky and David W. Levy (New York: Viking Press, 1971). 2 Schuyler v. Curtis, 147 N.Y. (1891). Elbridge Adams, "The Right to Privacy and Its Relation to Libel Law," American Law Review 36 (1905), 38-57. Roscoe Pound, quoted in Alpheus Thomas Mason, Brandeis: A Free Man's Life (New York: Viking Press, 1946), p. 70. William Prosser, Handbook of the Law of Torts (St. Paul: West Publishing, 1941), 803. |
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