126 Mark Washofsky
Benjamin E. Bratman,“Brandeis and Warren ’s The Right to Privacy and the Birth of the Right to Privacy,” Tennessee Law Review 69(2002), p. 624(“Brandeis and Warren 's article has attained what some might call legendary status. It has been widely recognized by scholars and judges, past and present, as the seminal force in the development of a‘right to privacy’ in American law”[italics in original]); Diane L. Zimmerman,“False Light Invasion of Privacy,” New York University Law Review 64(1989), p. 365(“the common law right of privacy was conceived in the late nineteenth century by the fertile intellects of Samuel Warren and Louis Brandeis. and was born on the pages of the Harvard Law Review”); and Ruth Gavison ,“Too Early for a Requiem: Warren and Brandeis Were Right on Privacy vs. Free Speech, ” South Carolina Law Review 43,(1992), p. 438 (1992)(Warren and Brandeis “single-handedly created a tort”).
18. See Neil M. Richards and Daniel J. Solove ,“Privacy’s Other Path: Recovering the Law. of Confidentiality,” Georgetown Law Journal 96(2007), p. 128, contending that, while“(t)heir article would forever change the intellectual landscape of American privacy law,” Warren and Brandeis did not so much create the right to privacy as to channel its development in a direction not followed in other common law jurisdictions, particularly
England.
19. It is difficult to substantiate this legend as a matter of fact. For a consideration of what we actually know, see Lewis J. Paper, Brandeis (Edgewood Cliffs, NJ Prentice-Hall, 1983), pp. 35-36. Brandeis ’s most recent biographer summarizes as follows:“For reasons not altogether clear, at some point Sam[Warren ] began to resent what he saw as press intrusion into his private life, and he turned to Louis [Brandeis ]”; Melvin I. Urofsky , Louis D Brandeis: A Life(New York : Pantheon, 2009), p. 98.