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Abstract

In 1934 Congress authorized the Supreme Court to formally promulgate rules of evidence. For almost forty years, the Court exercised that power without incident. The working relationship with Congress broke down, however, in 1973, when Congress intervened and substantially revised proposed Rules of Evidence drafted by the Court. Rule 509 regulating government privilege had provoked criticism during the time of Watergate. Article V dealing broadly with privileges remained very controversial. Differing interpretation of Rule 501, which grants the courts a power to determine federal privilege law, has divided the courts. The purpose of this article is to explore that split of authority. Part I is descriptive—it reviews the history of the privilege provisions of the Federal Rules and traces the evolution of those provisions from their initial proposal by the Advisory Committee to their final enactment by Congress. Part II of the article is evaluative—it analyzes the merits of the question of the interpretation of Rule 501. The analysis proceeds in the fashion of an Hegelian dialectic. It was the eighteenth- and nineteenth-century German philosopher Georg Wilhelm Friedrich Hegel who argued that truth can emerge from the clash of a thesis and its antithesis by yielding a synthesis incorporating the elements of truth in the thesis and antithesis. The question of the interpretation of Rule 501 lends itself to an Hegelian mode of analysis. Section II.A of this article critiques the thesis that Rule 501 should be construed as foreclosing or discouraging the recognition of new privileges. Section II.B considers the competing antithesis that the rule permits or even encourages the courts to formulate new privileges. Finally, section II.C develops the synthesis that the context of Rule 501—the bias implicit in the other articles of the Federal Rules strongly favoring the admission of relevant evidence—compels the conclusion that the federal courts should exercise great caution in announcing new privileges. The article concludes that the courts which champion a restrictive approach to the interpretation of Rule 501 are right but for the wrong reason.

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