Il. The phrase, which has become a well-known formula in American privacy law, seems to have originated with Justice John Marshall Harlan ’s concurring opinion in Katz v. United States, 389 U.S. 347,360:“My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual(subjective) expectation of privacy and, second,
2
that the expectation be one that society is prepared to recognize as‘reasonable.’ 12. This is essentially the point made by Mark Zuckerberg (note 7, above).
13. The term“progressive halakhah” is subject to various definitions. All of them involve the interpretation and application of the texts and sources of traditional Jewish law through the prism of a commitment to contemporary liberal Western values. For my own attempts to offer a definition and approach, see my“Against Method: On Halakhah and Interpretive Communities,” in Walter Jacob , ed., Beyond the Letter of the Law: Essays on Diversity in the Halakhah(Pittsburgh : Rodef Shalom Press, 2004), 17-77. The text is available under a slightly different title at http://huc.edu/faculty/faculty/washofsky/againstmethod.pdf.
14. For discussion see Haim Cohn , Human Rights in Jewish Law(New Y ork: Ktav, 1984), 17-18, as well as his Hamishpat(Jerusalem : Bialik , 1991), 513.
15. The judgment as to the influence of the Warren-Brandeis article(see next note) is by Harry Kalven,“Privacy in Tort Law: Were Warren and Brandeis Wrong?” Law and Contemporary Problems 31(1966), p. 327. Kalven is merely one of many who share that estimation. E Ibridge Adams wrote, already in 1905, that the article was“one of the most brilliant excursions in the field of theoretical jurisprudence”; “The Right of Privacy, and Its Relation to the Law of Libel,” American Law Review 39(1905). p. 37. William L. Prosser (note 32, below, at p. 383) noted that the article“has come to be regarded as the outstanding example of the influence of legal periodicals upon the American law.” See also Diane L. Zimmerman, “Musings on a Famous Law Review Article: The Shadow of Substance,” Case Vestern Law Review 41(1991), p. 823(“Samuel Warren and Louis Brandeis 's The Right to Privacy is the most famous scholarly endeavor of its kind”).
6. Samuel D. Warren and Louis D. Brandeis ,“The Right to Privacy,” Harvard Law Review 4(1890), pp. 193-220.
7. Take, for example, the pronouncement of Roscoe Pound (d. 1964), the longtime dean of Harvard Law School , that Warren and Brandeis “did nothing less than adda chapter to our law”: A.T. Mason, Brandeis : A Free Man's Life(1946), p. 70. See also Neil Richards,“The Puzzle of Brandeis, Privacy , and Speech,” Vanderbilt Law Review 63(2010), p. 1296(“Their short article is considered by scholars to have established not just the privacy torts but the field of privacy law itself);