A Public Privilege

Yale Law Journal Pocket Part, Vol. 118, p. 166, 2009

4 Pages Posted: 2 Dec 2008 Last revised: 21 Sep 2009

See all articles by Colin Miller

Colin Miller

University of South Carolina School of Law

Date Written: December 2, 2008

Abstract

If a rule is only as good as its exceptions, and a reporter is only as good as her sources, then, according to a recent Supreme Court of Pennsylvania opinion, Pennsylvania's reporter's privilege is the best of privileges and the worst of privileges. In that opinion, the justices failed to carve a crime-fraud exception out of Pennsylvania's reporter's privilege - its "Shield Law" - despite having previously read a similar exception into every other evidentiary privilege. Ironically, this alleged act of judicial passivism transformed the Shield Law into both a shield and a sword and mischaracterized the purposes served by the attorney-client privilege and all other evidentiary privileges. According to the court, the Shield Law is exceptional, and thus exceptionless, because it is directed toward the public end of protecting the free flow of information to society while the attorney-client privilege, like all professional privileges, is intended for the private benefit of the client. This essay argues, however, that as the United States Supreme Court recognized in Jaffee v. Redmond, all evidentiary privileges must serve two masters, private interests and public ends, and crime-fraud exceptions do not undercut those public ends but bolster them.

Keywords: Attorney-Client Privilege, Reporter's Privilege

JEL Classification: K40, K41, K42

Suggested Citation

Miller, Colin, A Public Privilege (December 2, 2008). Yale Law Journal Pocket Part, Vol. 118, p. 166, 2009. Available at SSRN: https://ssrn.com/abstract=1310282

Colin Miller (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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