ABSTRACT
More than a century after Samuel Warren and Louis Brandeis published ‘The Right to Privacy’ in the Harvard Law Review, their article remains one of the most influential – and perhaps misunderstood – pieces of legal scholarship in American history. This article revisits their seminal work, analyzing the historical context that gave rise to their theory of privacy, the intellectual lineage of their arguments, and the evolution of privacy doctrine in the century that followed. It explores the rhetorical brilliance and strategic ambiguity that allowed their article to ignite a new legal right, while also examining how courts, commentators, and legislatures have interpreted, expanded, and distorted their ideas. Through a detailed review of subsequent judicial decisions and scholarly responses, the article charts the development of privacy torts, the recognition of constitutional privacy, and the contemporary challenges of informational privacy in the digital age. Ultimately, it argues that Warren and Brandeis’s contribution should be understood not only as a foundational moment in privacy law but also as a model for legal innovation through persuasive advocacy.
Kramer, Irwin, The Birth of Privacy Law: A Century Since Warren and Brandeis, 39 Catholic University Law Review 703 (1990) (June 1, 1990).
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