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It has come to be regarded as the outstanding example of the influence of legal periodicals upon the American law.Law review is the name of the scholarly journal published by law students, and available at most law schools.Yet, the article raises a problematic scenario where a casual recipient of a letter, who did not solicit the correspondence, opens and reads the letter.
If this conclusion is correct, then existing law does afford "a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds." Furthermore, Warren and Brandeis suggest the existence of a right to privacy based on the jurisdictional justifications used by the courts to protect material from publication.
The article states, "where protection has been afforded against wrongful publication, the jurisdiction has been asserted, not on the ground of property, or at least not wholly on that ground, but upon the ground of an alleged breach of an implied contract or of a trust or confidence." Warren and Brandeis proceed to point out that: "This protection of implying a term in a contract, or of implying a trust, is nothing more nor less than a judicial declaration that public morality, private justice, and general convenience demand the recognition of such a rule." In other words, the courts created a legal fiction that contracts implied a provision against publication or that a relationship of trust mandated nondisclosure.
Every law review publication has a different name, usually including the name of the law school publishing it.
Many attorneys view law review as an elite program, since acceptance usually requires a grade requirement (e.g. Students should expect to edit the work that goes in the publication, which can include articles, book reviews, transcripts, Notes, and Comments.
Nimmer described Warren and Brandeis' essay as "perhaps the most famous and certainly the most influential law review article ever written", attributing the recognition of the common law right of privacy by some 15 state courts in the United States directly to "The Right to Privacy". Brandeis, who was destined not to be unknown to history.
The matter came to a head when the newspapers had a field day on the occasion of the wedding of a daughter, and Mr. It was an annoyance for which the press, the advertisers and the entertainment industry of America were to pay dearly over the next seventy years. The result was a noted article, The Right to Privacy, in the Harvard Law Review, upon which the two men collaborated.Warren and Brandeis take this opportunity to excoriate the practices of journalists of their time, particularly aiming at society gossip pages: The press is overstepping in every direction the obvious bounds of propriety and of decency.Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.The authors acknowledge that the exact contours of the new theory are impossible to determine, but several guiding principles from tort law and intellectual property law are applicable. "The right to privacy does not prohibit any publication of matter which is of public or general interest." Warren and Brandeis elaborate on this exception to the right to privacy by stating: In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, . With regard to remedies, a plaintiff may institute an action for tort damages as compensation for injury or, alternatively, request an injunction.As a closing note, Warren and Brandeis suggest that criminal penalties should be imposed for violations of the right to privacy, but the pair decline to further elaborate on the matter, deferring instead to the authority of the legislature.To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.Warren and Brandeis concluded that "the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone." Warren and Brandeis then discuss the origin of what they called a "right to be let alone".They explain that the right of property provides the foundation for the right to prevent publication.The authors state the purpose of the article: "It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is." First, Warren and Brandeis examine the law of slander and libel (forms of defamation) to determine if it adequately protects the privacy of the individual.The authors conclude that this body of law is insufficient to protect the privacy of the individual because it "deals only with damage to reputation." In other words, defamation law, regardless of how widely circulated or unsuited to publicity, requires that the individual suffer a direct effect in his or her interaction with other people.