Public Law and Legal Theory Working Paper No. 21

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Topics: Law, Research, Common law
CHICAGO
PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 21

ABOVE THE LAW: RESEARCH METHODS, ETHICS AND THE LAW OF PRIVILEGE
Geoffrey R. Stone

THE LAW SCHOOL THE UNIVERSITY OF CHICAGO

This paper can be downloaded without charge at: The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=XXXXXX

Above the Law: Research Methods, Ethics and the Law of Privilege
Geoffrey R. Stone*

In Anticipating Law, Palys and Lowman set forth the rationale for a “researcher-participant privilege” and advise scholars how best to preserve the confidentiality of their research in the face of a legal system that has not looked kindly on such a privilege. Although I am inclined to agree with Palys and Lowman that a researcher-participant privilege would, on balance, be beneficial, the case for the privilege is hardly self-evident. Moreover, the advice Palys and Lowman offer researchers in the absence of such a privilege is, in my judgment, unwise. I will briefly address both of these points.

The Researcher-Participant Privilege
Most of the rules of evidence, like most of the “rules” of research, are designed to get at the truth. For the most part, the rules of evidence exclude “unreliable” information from the consideration of the trier of fact. Privileges, however, are an exception. Privileges generally exclude reliable information in order to further a competing social policy. The effect of evidentiary privileges may thus be to increase the likelihood of erroneous fact-finding in criminal or civil proceedings. Because this is a high price to pay, the social policy furthered by a privilege must be quite weighty to justify the cost to the truth-finding function of the legal process. The most well-entrenched evidentiary privilege, which is applicable in every American jurisdiction, protects confidential communications between a lawyer and a client for the purpose of legal advice. The rationale of the attorney-client

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