Government Privilege: A Cautionary Tale For Codifiers
Some scholars want to codify the federal law of privilege but the history of the many governmental privileges suggests that converting common law privileges to statutory form may not do much to reform privilege law. After restating the conventional view of privileges, the author argues that both Congress and the courts can claim legitimate power to control them. He next outlines the political economy of the government secrecy that the privileges aim to protect and provides an econometric model to explain why our socio-political structure fosters bureaucratic secrecy. The author then uses the notorious “Quackgate” case [Cheney v. U.S.District Court, 124 S.Ct. 2576 (2004)] to illustrate how the secrecy-privilege system operates. The article concludes with thumbnail sketches of privilege cases to show that neither Congress nor the courts have the will to restrict government demands for privileged secrecy.