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43 Conn. L. Rev. CONNtemplations 1 (2011)

handle is hein.journals/conntemp43 and id is 1 raw text is: CONNECTICUT LAW REVIEW VOLUME 43 CONNtemplations SPRING 2011 Response Remembering Privacy and Regulation ALFRED L. BROPHY I. INTRODUCTION Eric Miller, one of our nation's most creative academic lawyers-he played an instrumental role in litigation on behalf of victims of the 1921 Tulsa riot-has a big agenda in Forget Privacy.1 It is to change how we think about the Warren Court. Forget that stuff we have learned about the Court's concern for privacy, especially in the 1960s, Miller says. The Court was interested in limiting government intrusion, but not necessarily in protecting privacy. The key to the Court was the promotion of personal security. II. THE POWER OF TRADITIONAL STORIES Like all efforts to rethink the Warren Court-or most other received wisdom-we should approach a new theory skeptically. There are reasons why the accepted wisdom has become the accepted wisdom: it is usually right. And while I certainly agree with Ralph Waldo Emerson that not everything that is popular is right, there is something to the herd mentality-especially when the herd contains scholars who have spent some time thinking about these issues. I have resisted the multiple attempts to revise the Warren Court history-the attempts that tell us that * Reef C. Ivey 11 Professor of Law, University of North Carolina, Chapel Hill. Contact the author at abrophyienail.unc.edu. I would like to thank the Connecticut Law Reviewi editors for all their work on this piece, particularly with providing citations. 'See Eric J. Miller, Forget Privacy: The Warren Court s Regulatory Revolution in Criminal Procedure, 43 CONN. L. REV. 1 (2010). 2 Id. at 4.

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