What if Samuel D. Warren Hadn't Married a Senator's Daughter?: Uncovering the Press Coverage that Led to The Right to Privacy
Michigan State Law Review, Vol. 2008, Issue 1, Spring
Illinois Public Law Research Paper No. 07-06
26 Pages Posted: 5 Nov 2007 Last revised: 28 Jun 2017
Modern tort protection for personal privacy is commonly traced back to Samuel Warren and Louis Brandeis' 1890 law review article, The Right to Privacy, yet scholars have long been uncertain what prompted Warren and Brandeis' impassioned attack on invasive press practices, unable to point to any news coverage of Warren that might convincingly explain his evident outrage at the press. This Article attempts to solve that mystery by examining approximately 60 newspaper stories from Boston, New York, and Washington, D.C., most never before analyzed, that report on the personal lives of Warren and his family. These stories - including some particularly intrusive coverage of Warren family tragedies - very plausibly explain what Warren had in mind when he wrote that ruthless gossip regarding private matters had become a social blight requiring legal remedy. This Article, part of a symposium dedicated to exploring how modern law might have developed differently without catalytic events, concludes that Warren and Brandeis' landmark article would not have been written if Warren had not married into a political family in the public eye.
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