They did not identify a new tort, but rather a new right that ought to be protected by tort law. That new right in turn was derived from an old right, perhaps a natural right, namely the right to be let alone. In light f these origins, it would have been surprising if the tort protection given to privacy remained confined within the narrow bounds f public disclosure. The very theory f torts upon which privacy was based implied its fluidity.
I have sought in the preceding sections to show how Warren and Brandeis viewed tort law as the law defining and protecting rights, and how this view was at odds with other conceptions f tort law that emerged at the end f the nineteenth century and eventually prevailed. Holmes's defendant-based instrumentalist vision provided the conceptual foundation f tort law well into the twentieth century. Strict liability largely gave way to negligence, even in such bastions f rights-based thinking as property. The common law, and most particularly the law f torts, became the domain f reasonableness rather than rights. Intentional torts, once the focus f torts, receded to near irrelevance. ...Show more