- Warren and Brandeis begin their essay with a general explanation of how new rights evolve. How do they characterize the trend among new rights, or how do these new rights, generally, compare to existing ones?
- What branches of law, or concepts of harm, emerge alongside the development of new rights?
- What is the specific prompt or occasion for writing this piece? What is it about “1890” that makes Warren and Brandeis predict legal change is coming?
- What are some the results of these trends? Which, if any, do you see happening today?
- Warren & Brandeis don’t at all question the importance of privacy and base their argument on a series of assumptions about its value. Why is privacy so important in the modern age of “1890”? Would we offer the same reasons now? What would we add?
- Return to question #1 and notice how W&B set up their essay: they move from the general context to their specific focus. They forecast their “project” (what they’re trying to do and how the essay will develop), and they explain why it matters. In two or three sentences, write a summary of the essay so far.
7. As legal scholars, Warren and Brandeis cite many precedents (rulings on similar cases made by previous judges) to substantiate their claim or to analyze the previous court’s thinking as a foundation for their own argument. Most of the decisions they discuss might seem to use a “narrow sense” of property (203, 204), but Warren and Brandeis detect “recognitions of a more liberal doctrine” (204) that they call “inviolate personality” (205). Using examples from the text, try to explain this concept and how it differs from property in the narrow sense.
8. Warren and Brandeis conclude that the “protection of society must come mainly through a recognition of the rights of the individual” (219). Go back to our readings from the New York Times and consider the different conceptions of society we saw there. Where would Warren and Brandeis fit? Explain.
9. In their final sentence, Warren and Brandeis invoke a familiar metaphor:
THE COMMON LAW HAS ALWAYS RECOGNIZED A MAN’S HOUSE AS HIS CASTLE, IMPREGNABLE, OFTEN, EVEN TO ITS OWN OFFICERS ENGAGED IN THE EXECUTION OF ITS COMMANDS. SHALL THE COURTS THUS CLOSE THE FRONT ENTRANCE TO CONSTITUTED AUTHORITY, AND OPEN WIDE THE BACK DOOR TO IDLE OR PRURIENT CURIOSITY? (220)
Building on question #3, what model of social organization does this metaphor support? Is privacy a right that everyone does–or should–enjoy? Why?