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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