The journalist's privilege for nonconfidential information in states with shield laws

Most scholarship on journalistic privilege has been devoted to the issues affecting the right of journalists to refuse to reveal the identities of sources to whom confidentiality has been promised. The only United States Supreme Court case and almost all activity in lower courts and legislatures on the question are aimed at resolving the problem of whether or under what circumstances journalists should be compelled to identify confidential sources. Almost all of the increasing numbers of subpoenas issued to journalists, however, are aimed at journalists' nonconfidential information. This article analyzes state shield laws and their adjudication, concluding that the state of the law is divided on whether and to what extent journalists attempting to protect nonconfidential information should enjoy a constitutional, common‐law or statutory privilege.     

No Confidence: Confidentiality,Ethics and the Law of Academic Privilege

The law recognizes several evidentiary privileges, including a qualified privilege recognized by statute or court precedent in forty-eight states and several federal circuits that allows journalists to protect confidential sources. Meanwhile, ethical practices for social science surveys require pledging confidentiality to respondents, a practice that can conflict with subpoenas and court orders requiring revelation of such information. Only a handful of court decisions have formally recognized a privilege for scholars similar to a reporters’ privilege, and an examination of the court decisions that have either ruled on or discussed the issue reveals that while many courts recognize the interests of scholars in confidentiality, most courts decline to recognize a legal privilege for researchers. Courts do, however, often limit disclosure to accommodate these concerns. The specific circumstances and rationales of these decisions are discussed and analyzed.     

The biomedical researcher and subpoenas: judicial protection of confidential medical data

An increasing number of medical researchers are being subpoenaed to testify or to supply records in cases in which they have not agreed to become involved as expert witnesses. The researchers' published works are alleged to have formed the basis of the opinions of physicians testifying as expert witnesses in these cases. Although the courts usually protect confidential medical data, the considerable burden of quashing these subpoenas is still imposed upon researchers and their universities. This Article argues that courts should protect these research records from subpoenas.     

I want my information back: evidentiary privilege following the partial birth abortion cases

In February 2004, privacy concerns captured the public's attention when the United States government, the defendant in a lawsuit challenging the constitutionality of the Partial-Birth Abortion Ban Act of 2003, sought to subpoena the medical records of patients receiving intact dilation and extraction (also known as "partial birth") abortions in six different hospitals and six Planned Parenthood centers across the country. Three different federal court cases explored the enforceability of the subpoenas. This Note explores the rationales used by the three courts in examining the privacy interests involved. It then suggests some possible solutions for systematically protecting medical information: a legal solution; a technological solution; and a combination of both. The legal solution involves creating a federal physician-patient privilege, similar to that enforced in many states and parallel to the federal psychotherapist-patient privilege. The technological solution requires the complicity of multiple jurisdictions to verify the necessity of revealing medical information. Taken together, these solutions can assist the government in protecting its citizens by imposing more checks on itself.     

THE PRESS AND THE JUDICIARY： COURT AND JUDICIAL REPORTS IN THE PREss IN ENGLAND AND WALES

Western scholars have argued that image making and image management are a preoccupation of the judiciary. Images of the judiciary may take a variety of forms and be produced for kinds of audiences. One form of judicial image making and image management is live performances in the courtroom and other court settings. Another is the written judgment where the preoccupation is the style of the written text. Press and other mass media reports of judicial activity are another. The audience for judicial images is equally diverse, from fellow judges, lawyers in the courts and the wider legal community, the litigants before the courts to the executive, legislature and the public both in the courtroom and beyond. The image of the judiciary that is available to the public has a particular significance in Western rule of law democracies. As a general rule courts and the judiciary are required to operate in public and their activities must be open to public scrutiny. A recent policy manifestation of this goal is debated about confidence in the justice system and initiatives designed to improve confidence. In the majority of cases public scrutiny of judicial activity and public confidence in the judiciary relies upon the media. Objective and accurate press and media reports play a key role in shaping public understanding of the judiciary and generating or undermining confidence in that institution. Reports in regional and national newspapers have long been an important source of information, shaping public knowledge and facilitating public scrutiny of the justice system. In the UK, there is almost no scholarship on these representations past or present. The result is little known about the representation of the courts and the judiciary in press reports. Little is known about what the diligent reader of these reports can learn about judicial activity. The aim of this article is to take a first step towards changing that state of affairs. It uses a data set made up of 205 contemporary domestic newspaper reports of court and judi     

The Tarasoff dilemma in criminal court.

The duty to protect, or Tarasoff duty, has been conceptualized as arising solely in the context of a clinical setting. A recent California Supreme Court ruling in People v. Clark adds legal, clinical, and ethical dilemmas to the oftentimes contentious Tarasoff issue. Though the Tarasoff issue is but a minor legal point in Clark, a possible consequence of Clark is that a Tarasoff warning could be deemed nonconfidential and admissible in a criminal trial. Psychotherapists could therefore be testifying in criminal courts as prosecution witnesses. While the possibility of a chilling effect on patients' disclosure of violent ideation in the context of psychotherapy first caused apprehension after the California Supreme Court's 1976 decision in Tarasoff v. Regents of the University of California, this same Court's ruling in People v. Clark some 14 years later may ensure that this fear finally becomes realized.     

Challenging Civil Contempt: The Limits of Judicial Power in Cases Involving Journalists

Despite their assertion of a First Amendment or common law reporter's privilege in federal courts, journalists continue to face jail sentences and exorbitant fines for refusing to divulge their confidential sources when subpoenaed. Efforts to pass even a limited federal shield law have failed so far. This article offers another avenue to protect journalists—examining the roots of contempt law and policy to highlight limits on the contempt power of judges. It argues that because journalists are part of a group resting on steadfast moral and professional convictions, they may validly argue that confinement and excessive fines are improper sanctions. The article also suggests refinements in shield law proposals and other legislation to clarify the extent of judicial contempt power.     

Arnett v. Dal Cielo: peer review confidentiality threatened by medical board investigational subpoenas

If not modified or overturned on appeal, the Dal Cielo decision will very likely have a significant negative impact on the ability of California's organized peer review bodies to conduct frank, candid, and confidential peer review. Dal Cielo appears to permit the Board to subpoena committee minutes, physician credentials files, and live testimony whenever it determines that a physician should be investigated. Further, the impetus for the Board's investigation might be little more than a complaint from a single patient or even a disgruntled former employee of the physician or hospital. Regardless of current and future decisions, however, peer review bodies in California and other states operating under similar court decisions still retain at least some limited means to protect the confidentiality of their evaluative work. If, for example, a peer review body can establish that an investigatory subpoena seeks irrelevant information, is based upon little more than unsubstantiated rumor, or that the medical board has made no efforts to obtain information from other available, non-privileged sources, it may be able to convince a court that the subpoena is not supported by good cause. Peer review organizations should thus consider challenging medical board subpoenas in court to narrow their scope or establish that there is sufficient need for them. If any peer review body is served with an investigatory subpoena by a medical board requesting production of peer review information, it should carefully assess applicable state confidentiality protections.(ABSTRACT TRUNCATED AT 250 WORDS)     

Free press and fair trial: The role of behavioral research

The growth of mass media has complicated the relatioship between the courts and the media. Free press and fair trial rights are kept in balance by the use of judicial restraints and remedies such asvoir dire, change of venue, and gag orders. This balance has shifted back and forth during the past two decades. Current case law and legal codes are inconsistent and provide insufficient guidance to judges in their use of restraints and remedies. Nor is there a body of empirical research on the impact of news coverage and juror behavior capable of informing the courts at this time. In this paper, we review and critically assess the empirical social science literature as it pertains to the legal issues involving free press and fair trial. We argue that carefully conducted empirical research could provide important information to the courts. We suggest research directions and methodological caveats to increase legal relevance and scientific validity.     

'Solange, chapter 3': Constitutional Courts in Central Europe—Democracy—European Union

Abstract: Soon after the accession of eight post‐communist states from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well‐known pattern of behaviour favoured by a number of constitutional courts of the ‘older Europe’, which is called a ‘Solange story’ for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in post‐communist states, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts’ adherence to the ‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their position vis‐à‐vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.     

Anonymous Speakers and Confidential Sources: Using Shield Laws When They Overlap Online

The development of the Internet as a mass medium has created new tensions between the rights to speak anonymously and to be protected against defamation. Some courts have developed balancing tests to determine when anonymous speakers should be unmasked, the most popular of which generally require some initial showing of prima facie evidence. Other times, shield laws have been used to protect the anonymous when comments have been posted on news organization Web sites. However, news organizations should be cautious when using shield laws to protect anonymity, and judges should evaluate privilege claims as they always have. In other instances, anonymity appears to be adequately protected by summary judgment balancing tests. An approach in which news organizations focus on the type of comment and its potential journalistic contribution in deciding how to protect commenters’ identities could help ensure that anonymous speech is properly protected without harming shield laws.     

The Structure of American Legal Institutions and the Diffusion of Wrongful‐Discharge Laws, 1978–1999

This article evaluates how the social structure of American legal institutions influenced the diffusion of wrongful‐discharge laws over the period 1978–1999, and it assesses whether economic or political variables influenced the diffusion process. The results are surprising and quite striking. Precedents by other courts within the same federal circuit region were generally more influential in the diffusion process than precedents by courts in neighboring states or by courts within the same census or West legal reporting region, even though the precedents were on matters of state law rather than federal law and the decisions were usually made by state courts rather than federal courts. There is some limited evidence that political variables may also have been a factor, but economic variables were not statistically significant, even though the new employment laws may have had important economic consequences.     

PARENTING COORDINATION: IMPLEMENTATION ISSUES1

The parenting coordinator model (“PC model”) has been implemented in many states as an intervention for dealing with high conflict families in domestic relations proceedings before the courts. The PC model has been repeatedly recommended by professionals as an intervention to help families structure, implement, and monitor viable parenting plans and to reduce relitigation rates where high conflict threatens the family adjustment process. This article summarizes current professional literature on the PC model and discusses the PC model as it has been implemented in various states, outlining the implementation issues encountered. This information may serve as a guide for determining the feasibility of establishing the PC model in other jurisdictions, and provides insight into potential impediments and possible resolutions.     

Patient confidentiality statutes in Medicare & Medicaid fraud investigations

The Medicare and Medicaid programs have been burdened with health care providers' fraudulent and abusive practices since their implementation in 1965. To help states discover and prevent Medicare and Medicaid fraud, Congress has enacted statutes permitting access to patients' medical records in investigations of fraud. The majority of states have enacted physician-patient and psychotherapist-patient privilege statutes to protect confidential information from disclosure. Thus, the state's need for patient information conflicts with the patient's right of privacy. This Note discusses several court decisions that have wrestled with the tension between these two policies. The courts, after balancing the state interest in eliminating fraud against the patient's privacy interest, have often allowed disclosure of patient medical records. Although some courts have attempted to limit the extent of the information disclosed, few have set forth explicit standards to protect patient records from unwarranted disclosure of confidential information. This Note suggests guidelines for courts, legislatures and health care providers to uniformly limit the extent of this disclosure.     

Campaigning for the Bench: The Corrosive Effects of Campaign Speech?

A new era has emerged in the ways in which candidates for state judicial office campaign. In the past, judicial elections were largely devoid of policy content, with candidates typically touting their judicial experience and other preparation for serving as a judge. Today, in many if not most states, such campaigns are relics of the past. Modern judicial campaigns have adopted many of the practices of candidates for other types of political office, including soliciting campaign contributions, using attack ads, and even making promises about how they will decide issues if elected to the bench. Not surprisingly, this new style of judicial campaigning has caused considerable consternation among observers of the courts, with many fearing that such activity will undermine the very legitimacy of legal institutions. Such fears, however, are grounded in practically no rigorous empirical evidence on the effects of campaign activity on public evaluations of judicial institutions. The purpose of this article is to investigate the effects of campaign activity on the perceived legitimacy of courts. Using survey data drawn from Kentucky, I use both post hoc and experimental methods to assess whether public perceptions of courts are influenced by various sorts of campaign activity. In general, my findings are that different types of campaign activity have quite different consequences. For instance, policy pronouncements by candidates do not undermine judicial legitimacy, whereas policy promises do. Throughout the analysis, I compare perceptions of courts and legislatures, and often find that courts are far less unique than many ordinarily assume. I conclude this article with a discussion of the implications of the findings for the contemporary debate over the use of elections to select judges to the high courts of many of the American states.     

CONFIDENTIALITY,DUE PROCESS,AND JUDICIAL DISQUALIFICATION IN THE UNIFIED FAMILY COURT: REPORT TO THE HONORABLE STEPHANIE DOMITROVICH

To the extent that courts realize the pure one judge–one family notion of the unified family court—in which one judge handles all domestic relations, probate, juvenile dependency, juvenile delinquency, and domestic violence cases involving members of the same family—they encounter three potential legal barriers: confidentiality of court records in some of the cases, due process issues arising from the consideration of material from a related case file in which the parties to the current case may or may not be parties, and judicial disqualification arising from the judge's handling of a previous case involving the family. This article summarizes information obtained from a survey conducted for the Children and Family Law Committee of the National Conference of State Trial Judges, of courts in sixteen states, to learn how they have resolved these legal issues.     

Guidelines for Collecting and Recording the Race and Ethnicity of Juveniles in Conjunction with Juvenile Delinquency Disposition Reporting to the Juvenile Court Judges' Commission

One of the most compelling reasons for accurate racial coding of juveniles involved in the juvenile justice system is to ensure that all youth are treated fairly, regardless of race or ethnicity. Pennsylvania juvenile courts and probation departments now have instructions and guidelines for collecting and recording race and ethnicity in compliance with Federal standards. These guidelines can be easily adopted by other states and jurisdictions.     

Helping Children in the Child Welfare Systems Heal from Trauma: A Systems Integration Approach

Numerous organizations touch the lives of children and their families following incidents of maltreatment, including family/dependency courts, child welfare agencies, foster parent associations, foster care agencies or substitute care facilities, mental health agencies, and others. The way these organizations work together is critically important. They have the potential to promote child safety and reduce the harmful impact of maltreatment on children, but also, unfortunately, at times their actions may worsen the traumatic experience for children and their families. The National Child Traumatic Stress Network conducted a survey of 53 child‐serving organizations in 10 states, to assess the ways the organizations gather and share trauma‐related information and the basic training about child trauma their staffs receive. The goal was to determine how the various service systems, including the courts, communicate with each other about trauma and the extent to which, alone or in combination, they promote children's healing following traumatic events. The survey results point to a need to improve collaboration on issues associated with child maltreatment and trauma. Judges can be important leaders in bringing about necessary changes. Recommendations for judges and courts are included.     

Road Closed: Evaluating the Judicial Bypass Provision of the Pennsylvania Abortion Control Act

This paper examines the extent to which Pennsylvania county courts are prepared to implement the judicial bypass provision of the state's abortion statute. Under the Pennsylvania Abortion Control Act it is illegal for physicians to perform abortions on pregnant minors without parental consent. The constitutionality of this requirement has been upheld, but only when states provide a mechanism allowing a minor to bypass parental involvement. The Pennsylvania statute includes a judicial bypass provision that is formally consistent with legal precedent. However, based on a study of how county courts respond to inquiries into the judicial bypass procedure, this paper demonstrates that most courthouses are not prepared to implement or provide accurate information on bypass proceedings. Since the constitutionality of parental involvement requirements is conditioned on the availability of a bypass option, the paper argues that the courts' lack of readiness poses a significant threat to the rights of pregnant minors.