By Daniel J. Solove
Does scholarship really have an impact? For a long time, naysayers have attacked scholarship, especially scholarship about law. U.S. Supreme Court Chief Justice Roberts once remarked: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.” He noted that when the academy addresses legal issues at “a particularly abstract, philosophical level . . . they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.” Judge Harry Edwards also has attacked legal scholarship as largely irrelevant.
Critics are quick to point out that much legal scholarship is not cited much — and many articles are never even cited by anyone other than the authors themselves in subsequent works.
But I think that a lot can be learned from the story of one of the most influential law articles of all. That article was Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890).
Warren and Brandeis discussed how journalism was becoming more sensationalistic: “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.” And they expressed concern about a new technology they called “instantaneous photograph[y.]” — the new smaller and cheaper cameras being marketed by the Eastman Kodak Company that made it possible for candid photos to be taken.
Warren and Brandeis called for a tort remedy for privacy violations. Torts involve people suing others for wrongfully harming them. If a person carelessly bumps into a person and knocks him down, causing injury, the victim can sue under the tort of negligence. Or if a person punches another in the face, the victim can sue for an intentional tort. In 1890, Warren and Brandeis argued that although the law currently didn’t recognize tort protections for privacy violations, there was a basis in the law to remedy privacy harms through tort actions.
At the time they wrote about privacy law, not much had been written. Indeed, this was the very first piece on the topic for the authors. Previously, they had written two articles on the riveting topic of pond law. See The Watuppa Pond Cases, 2 Harvard Law Review 195 (1888) and The Law of Ponds, 3 Harvard Law Review 1 (1889).
Although the privacy article inspired a handful of law review articles in response, there was little activity in courts or legislatures. A year after the article, one court recognized a right to privacy, but that court was reversed a few years later. See Schuyler v. Curtis, 42 N.E. 22 (N.Y. Ct. App. 1895). For more than 10 years, nothing really happened in the law.
So looking back on the article in 1900, a decade later, the article looked like quite a flop. It had no impact. The law was unchanged. The authors didn’t write anything more on privacy. For all they knew at this time, they would be better known for their thoughts on ponds than on privacy.
Then, in 1902, in Roberson v. Rochester Folding Box Company, 64 N.E. 442 (N.Y. 1902), a woman used Warren and Brandeis’s article to claim she could sue when a company used her image on an advertisement without her consent. The court held that the right to privacy had no basis in the law.
But the court’s decision wasn’t the end of the matter. The case sparked public attention, and the court’s decision was vigorously criticized by the media and other commentators. A year later, in 1903, the New York legislature enacted a statute to allow people to sue for invasion of privacy. Warren and Brandeis finally had their first victory.
So it took 13 before finally the law changed in response to the article — and it was only one state’s law.
In 1905, the Georgia Supreme Court recognized in the common law a tort remedy for invasions of privacy. Pavesich v. New England Life Insurance Company, 50 S.E. 68 (Ga. 1905).
So 15 years later, and two states now had a right to privacy. Not bad. But the impact of the article was still not enough to warrant more than a footnote in the history of privacy law.
By 1940, 50 years after the article, 15 states recognized a right to privacy. A decent showing, but still not a huge impact . . . maybe worth a sentence or two in the history of privacy law.
The next few decades saw an immense embrace of Warren and Brandeis’s argument. Privacy torts multiplied quickly. A few trees transformed into a forest.
Today, the vast majority of states — more than 90% — recognize one or more torts based on Warren and Brandeis’s article. There are 4 different widely-recognized torts to protect privacy that have been created based on the Warren and Brandeis article. The article has been cited constantly. It has influenced many privacy statutes too.
As early as 1966, the article was hailed as the “most influential law review article of all.” As a commentator stated in 2002, Warren and Brandeis’s article “has attained what some might call legendary status” and has been a “seminal force in the development of a ‘right to privacy’ in American law.”
So before folks rush to write off scholarship, I think that there are several key points to be learned from this story:
1. It can take a long time for a work of scholarship to have an impact. After 10 years, the Warren and Brandeis article would have been viewed as a flop. After 50 years, it would have been viewed as having a limited impact. Change can take a long time.
2. It might not be clear early on whether a particular work of scholarship will have a large impact. Warren and Brandeis obviously thought pond law was important enough for a few articles.
3. An article can be quite radical in what it is arguing and still lead to change. Sometimes when scholarship calls for big changes, people dismiss it as being too impractical. In law, the common refrain is: “Here goes another law professor, dreaming up new laws.” But sometimes big change can happen, and one need not propose marginal changes.
4. Change requires more than just a work of scholarship. To make change happen, ideas in scholarship are just the starting point. They are not self-executing. Others must promote them. Lawyers must try them out in cases. It took the lawyer in Roberson trying out Warren and Brandeis’s theory, then a dusty ignored theory from more than a decade ago. It took others who wrote about the case. It took people who spoke about the case and criticized the case — enough to gain the attention of the New York legislature. It took all the players in the legislative process to pass the law. It took more courts to recognize the torts — more lawyers had to bring the cases. Other scholars contributed to. William Prosser, the most famous torts scholar of his day, wrote about the Warren and Brandeis privacy torts in his treatise. He then wrote a very influential article about the torts. See William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 383 (1960). He included the torts in the American Law Institute’s Restatement of Torts, a highly influential document that judges often look to for guidance. In short, it takes a village.
Most scholarship will not have an impact — change is hard to achieve. But some scholarship will inspire change and provide the intellectual backbone that shapes key developments and movements. A lot of acorns don’t germinate into trees. That’s how nature often works, with a lot of misses to get a hit. Scholarship is no different.
Interestingly, as Richard Re and Jonathan Adler note, Chief Justice Roberts ironically “often cites academic articles from law reviews in his opinions on the Court.”
So it is true that most works of scholarship are akin to acorns abandoned in some chipmunk’s hoard, never to germinate. But there are some works out there that will blossom — it just takes people willing to engage with them and to try to use them . . . and sometimes a little luck.
So bring on more acorns and let’s see which will grow into something big. For the naysayers who want scholarship to do more, they can either whine about it or start looking for good acorns, and go about planting them. Or create acorns of their own.
Sources and Background: For more background about the story behind the genesis and influence of the Warren and Brandeis article, see my article, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Georgetown Law Journal 123 (2007) (with Neil M. Richards). The commentators quoted about the influence of the Warren and Brandeis article are Harry Kalven, Jr., Privacy in Tort Law—Were Warren and Brandeis Wrong?, 31 L. & Contemp. Probs. 326, 327 (1966); Benjamin E. Bratman, Brandeis and Warren’s “The Right to Privacy” and the Birth of the Right to Privacy, 69 Tenn. L. Rev. 623, 624 (2002).
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. This post was originally posted on his blog at LinkedIn, where Solove is a “LinkedIn Influencer.” His blog has more than 890,000 followers.
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