The evidence class recently discussed the concept of academic privilege, in the sense that an academic institution might enjoy some exemption from general duties of openness in its internal affairs. In an attempt to better ascertain the existence or boundaries of such a privilege, Professor Nesson recently sent the following query to an academic listserv. These are the replies he has recieved so far.

Charles R. Nesson, aka eon d of c1
Wm. F Weld Professor of Law, Harvard Law School
Director, [Berkman] Center for Internet & Society at HLS
Organizer of "Digital Harvard/China" 
-- Cambridge, March 5-6, 1997,
Chairman, Second International Harvard Conference on Internet & Society 
-- Cambridge, May 26-29, 1997.
email: nesson@law.harvard.edu
url: cyber.harvard.edu
vox: 617-495-4609
fax: 617-495-1110

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These are the responses.

Date: Wed, 14 Jan 98 12:55:37 -0600 
Subject: Re: the "academic privilege" advantage 
Sender: sleuth@TELEPORT.COM From: sleuth@TELEPORT.COM
To: evid-l@lawlibdns.wuacc.edu 
Reply-To: evid-l@lawlibdns.WUACC.edu 

In my experience, most people who have information that would aid in the pursuit of justice, want to convey that information. However, due to the various privileges and occupational ethics rules, they may hesitate. I usually ask them frankly what it is I can do to help them share with me the knowledge they are witholding.

Commonly, the witness' reply indicates the need for some kind of court order compelling the information. Then I ask if a subpoena would suffice, to which they generally reply, "yes". Assuming that there is a hearing to which a witness might be summoned, I serve a subpoena.

This courteous approach, not only facilitates the gathering of information, but it creates a receptive environment for the service. The advantages of this method are: 1)The witness feels I have done them a favor by serving them the subpoena. 2)The witness feels their bases are covered if litigated for disclosure of "private" information. 3)I avoid a potentially conflagrant experience (as many process servers will aver that serving subpoenas can be hazardous to one's health). 4) The information now becomes available for litigation purposes. 5) The witness views the attorney I work with as a reasonable, and courteous person. Hence, information freely flows.

I hope this applies and responds, at least in part, to your inquiry.

"sleuth"

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Date: Wed, 14 Jan 98 16:28:38 -0600 
Subject: Re: the "academic privilege" advantage 
Sender: hawes@bigfoot.COM 
From: hawes@bigfoot.COM
To: evid-l@lawlibdns.wuacc.edu 
Reply-To: evid-l@lawlibdns.WUACC.edu

What the heck is an "academic privilege"? I don't think there's been such a thing since the reign of King Henry VIII. These folks aren't actually "batchelors" and "doctors" in the ecclesiastical sense, are they? Is there a state statute that creates an "academic privilege"? Sounds like dust in the eyes, to me.

===================================

Daniel L. Hawes Hawes & Associates, a Chartered Professional Law Corporation

web: http://www.dc.net/dlh/ email: dlh@cais.com

===================================

Date: Wed, 14 Jan 98 17:30:06 -0600 
Subject: Re: the "academic
privilege" advantage 
Sender: RHughes921@AOL.COM 
From: RHughes921@AOL.COM
To: evid-l@lawlibdns.wuacc.edu 
Reply-To: evid-l@lawlibdns.wuacc.edu

In Texas, our evidence code follows the Fed. R. Evidence, except that we adopted the privileges set out by the Model Evidence Code from the ALI. In court, the only privileges that work are those in the evidence code or in a statute. Frequently state universities can rely on statutes that make governement records confidential to protect information. Otherwise, there is no academic privilege to withhold evidence.

Roger Hughes

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Private reply: RHughes921 



Date: Wed, 14 Jan 98 20:41:28 -0600 
Subject: Re: the "academic
privilege" advantage 
Sender: Plaintiff@aol.COM 
From: Plaintiff@aol.COM
To: evid-l@lawlibdns.wuacc.edu 
Reply-To: evid-l@lawlibdns.wuacc.edu 


In a message dated 98-01-14 06:57:45 EST, nesson@law.harvard.edu writes:

<< we naturally run up against people who are reluctant to 
disclose information because they feel bound by the constraints of 
academic privilege.

Academic *freedom* is, IMHO, a wholly legitimate concept, dedicated
to the right and necessity of being able to explore ideas of all kinds
in a classroom/university setting. This is a positive, outward-looking
idea that fosters the "universe" in university.


"Privileges" are specific rules of law carving out narrow,
precise exceptions to the basic rule that the society requires all perssons
to state truthfully the information they have when germane to particular
socially- sanctioned dispute resolutions, which we usually terms trials.


Academic "privilege" is an empty phrase. It is not something
the law recognizes and hence it does not exist.

It is interesting how, even when not intended, the use of small words
can convey a sense of naturalness, of-course-this-is-right-ness, suggesting
that something is so well known that debate or even discussion would be
inconceivable. 

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Private reply: Plaintiff 

 


Date: Fri, 16 Jan 98 09:46:05 -0500 
Subject: Re: privilege
 Sender: berkowit@fas.harvard.edu 
From: berkowit@fas.harvard.edu 
To: nesson@law.harvard.edu


Charlie,

In regard to the question of privilege in political theory, I could give 
you three perspectives from the history of political philosophy on 
concealing the truth.  First, the extreme moralistic view of Kant: lying 
is always bad and publicity is always good.  Second, the extreme 
antimoralist view of Machiavelli: glory or success in politics is the 
good and it always requires force and fraud.  Third, the view shared by 
many but which you could call Platonic, which holds that deception is 
sometimes necessary in politics but it is only justified to secure a 
noble or just end.

Believe it or not, only as I write these lines do I realize that I laid 
out something like this scheme in my September New Republic essay, "The 
Politic Moralist" (which contains a final flourish about "lectern 
liberals who publicly preach respect for the rule of law but behind the 
scenes manipulate the procedures entrusted to their care").

Thanks.

Peter




Date: Thu, 15 Jan 98 07:50:43 -0600 
Subject: Academic Privilege & Controversial Clinics 
Sender: jacobs.4@osu.edu 
From: jacobs.4@osu.edu 
To: evid-l@lawlibdns.wuacc.edu 
Reply-To: evid-l@lawlibdns.WUACC.edu


Since EEOC v. University of Pennsylvania, the classic academic privilege 
of tenure review secrecy has been abandoned with even statutory 
protection yielding to the relevance and need for successful prosecution 
of cases. Shabby tenure treatment differs, of course, from 
discrimination, and a private institution avoids civil rights claims 
under the Constitution. Still, the balancing of interests favors 
disclosure, and the language in that Supreme Court opinion resonates with 
judges (professors ought to be willing to lay their names on the line 
when reviewing others, secrecy is antidemocratic, and so on).

My experience is that off-the-record conversations are remarkably useful 
in the preliminary, presuit stages.  Most academics love to gossip (even 
E-mail) and need only a point of reference to download information about 
a particular controversy.  Resistance builds at the core of the adverse 
decisionmaking; thus, teachers, TA's, secretaries, and students on the 
periphery are quite willing to talk to investigators.  

Naturally, most of these cases start on paper: the dossier compiled by 
the candidate and the promotion committee.  How others have been treated 
is useful information even when the central claim is unfairness rather 
than discrimination, and teachers who have left rather than confront an 
unfair administrator often have insights and leads.  From the other 
direction, consider those who served in past years above the targeted 
decisionmakers and have since retired and transferred.  Again, even 
insights and leads can be helpful despite the natural desire to identify 
fact witnesses.

Ultimately, the appeal to altruism about academic freedom can loosen 
tongues, essentially that many of us believe (and did so even before 
joining academia) that preserving independence at universities and 
colleges ultimately serves society quite well.  As always, the price for 
any freedom is responsibility, but this responsibility must come from 
within under the academic privilege that flows from academic freedom.  
Bottom line, if you don't help me clean our house then the house will no 
longer be worthy of that academic freedom.

Finally, "using" law students to work in clinical settings or tasks on 
cases is by now a totally accepted and often preferred way of learning 
analytical and practical skills.  The only controversy comes from those 
who believe an unfair advantage flows from the students' enthusiasm, 
talent, and resources (on-line and huge library, call-up-a-specialist, 
time, energy, and grade-driven effort).  Yet, that "advantage" does not 
change facts, create precedent, or even imbue persuasiveness.  From the 
vantage point of two decades in clinical legal education, I assure 
readers that clinical education is not even efficient; it takes much 
longer to work with students than to do the task oneself.  Now, it is 
formidable to face a clinical course on the other side of a case because 
that equal adversary we presume but seldom find is suddenly staring at 
us.  But, controversial?  C'mon, a handful of cases in any jurisdiction 
at any time, and, truth be told, our opponents love the idea of beating 
professors and students, almost rejuvenates those nearing burn-out.

Professor Louis A. Jacobs 
College of Law 
The Ohio State University 
55 West 12th Avenue 
Columbus, Ohio 43210-1391 
(614) 292-9962 Telecopier 
(614) 292-5511 
E-Mail jacobs.4@osu.edu


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