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common law
“The Right to Privacy” by Warren and Brandeis
he modern “right to privacy” is frequently attributed to Warren and Brandeis’ groundbreaking 1890 law review essay of that same name. Its initial purpose, according to Steven Childress, was to recognize, within the traditional common law, “a civil and non-contractual right of protection against invasions of privacy.”
Civil law’s influence on early United States law
It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to “pure” common law.
The (scientific) development of common-law precedent
One of the defining characteristics of common law (as opposed to civil law) is the binding nature of precedent, sometimes referred to by its Latin name of stare decisis. But before the seventeenth century, the defining characteristic of English common law was not this one, but rather that common law reflected universal and customary law, and as such the goal was for judges to utilize previous decisions as merely guides to help them get closer to the true (unwritten) laws of England, not as binding in themselves.
Common law originalism: the common law was not so common
One reason to examine the reception of English common law in the American colonies is the reliance by modern originalists (like Antonin Scalia) on the generalized understandings of what the Constitution meant in light of its common-law context. But finding that stability may not be as easy as it might seem, at least in part because jurists of the time were, in many ways, as sophisticated as we are today in arguing with, against, and around precedent–which itself was hardly either stable or fixed.
Reading William B. Stoebeck’s “On the Reception of English Common Law in the American Colonies”
In 1968, William B. Stoebeck published “On the Reception of English Common Law in the American Colonies,” a discussion of how and when England’s common law came into use in the American colonies.
Civil law and courts of equity: the common law is hybrid law
The Roman civil law tradition (which prevails in Europe) has had a larger impact on American jurisprudence than is generally acknowledged. Indeed, although the United States considers itself a common-law country, we in fact use a system that combines common (judge-made, customary, adversarial, precedent-focused) with civil (usually statute-based and inquisitorial) law, but which in England focused on “equity” or fairness and justice.
Civil law’s influence on American common law: the appeal
In “Salamanders and Sons of God,” an article in The Many Legalities of Early America, Mary Sarah Bilder writes about the “Culture of Appeal in Early New England,” and situates the embrace of the right to appeal by New Englanders within the larger English and Roman legal tradition.
Colonial Law in Early America
In The Common Law in Colonial America: The Chesapeake and New England, 1607-1660, William Edward Nelson writes about three main colonial legal traditions: Virginia, New England, and Maryland. These three centers drew to various degrees from English common law, but deviated from it in a number of important respects and for reasons related to their establishments and purposes.
Early lawyering in colonial America
In the seventeenth century, according to Kermit Hall and Peter Karsten, “there were few lawyers and their status was problematic.”
Presenting “Privacy & The Telegraph”
A slideshow presentation of my talk on the shifting views on privacy, from the nineteenth century’s focus on property and relationships to the twentieth’s focus on people as having an individual right to privacy.
Judge Noble Hand hints at the move from property to people
I have already discussed how Fourth Amendment protections and related “right to privacy” have shifted from a focus on property in the 19th century to one focused on people in the 20th. Judge Noble Hand’s 1897 law review article, Schuyler against Curtis and the Right to Privacy, gives some interesting hints about how American jurists contributed to this shift.
An argument for the “Inviolability of Telegraphic Correspondence”
Former Michigan Supreme Court Justice Thomas M. Cooley, in a forward-looking article, advocated for extending Fourth Amendment protections to telegrams in 1879. Cooley articulated a position that both foreshadowed 20th century arguments over telephone wiretaps, and reflected his late 19th century concerns.
The Fourth Amendment: from property to people
For the Fourth Amendment–the prohibition against unreasonable search and seizure–one of these foundational cases was Entick v. Carrington (1765). It was not until Katz in 1965 that the Supreme Court returned to the tradition of ex Parte Jackson and held that “the Fourth Amendment protects people, not places.”
What was the “right to privacy” in 1948?
It took nearly 50 years for Justice Brandeis’ ground-breaking law review article on the right to privacy to begin to widely influence judicial decisions. By 1948, though, a dozen or so states had begun to recognize the right as a part of common law.
New technologies lead to new constitutional protections
The boom in transportation and communications technologies in the nineteenth century outpaced the pace of legal change. It was only through the emergence of new concerns around both privacy and confidentiality that people themselves began to realize their importance in a way never before imagined.
