Law Commons^™

Country By Country Reporting And Corporate Privacy: Some Unanswered Questions, Reuven S. Avi-Yonah

Articles

Corporate privacy is an oxymoron. Individuals have a right to privacy, which the Supreme Court has recognized at least since Griswold v. Connecticut (1965). Warren and Brandeis’ famous defense of the right to privacy (1890) clearly applied only to individuals, because only individuals have the kind of feelings that are affected by invasions of privacy. Corporations are legal entities, and the concept of privacy does not apply to them, as the Supreme Court held in 1906. Thus, any objection to making corporate tax returns public cannot rest on the right to privacy. In fact, corporate returns were made public in …

The Role Of The International Committee Of The Red Cross, Rotem Giladi, Steven Ratner

Book Chapters

In the absence of a serious implementation mechanism in the Geneva Conventions, much of the leading responsibility for promoting their observance falls upon the International Committee of the Red Cross (ICRC), the 150-year-old institution that is a sui generis hybrid between a Swiss non-governmental organization (NGO) and an international organization. With its secretariat in Geneva and delegations throughout the world, the ICRC is, in many conflicts, the most direct voice for the Conventions. The central role of the ICRC pre-dates the Conventions, for the ICRC has been the driving force behind the codification of international humanitarian law (IHL) since the …

Rethinking Reporter's Privilege, Ronnell Andersen Jones

Michigan Law Review

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …

Behind The Flag Of Dunant: Secrecy And The Compliance Mission Of The International Committee Of The Red Cross, Steven Ratner

Book Chapters

In the world where most NGOs see their role in the international legal process as public advocacy, often through naming and shaming, the International Committee of the Red Cross stands apart. Much of its work consists of confidential visits and secret communications to warring parties. It rarely identifies violators publicly; it leaves its legal position on many issues ambiguous; and at times it avoids legal discourse entirely. This aversion to transparency is not only at odds with the assumptions of the naming and shaming strategy regarding the most effective means to induce compliance. It also makes it almost impossible for …

Confidentiality Of Educational Records And Child Protective Proceedings, Frank E. Vandervort

Book Chapters

The Federal Family Education Rights and Privacy Act (FERPA), which provides funding for state educational programming, requires that student records be disclosed to a nonparent only with the written consent of the child’s parent, unless the disclosure falls within one of the several exceptions detailed in the statute. One of the exemptions provided for in the federal law permits a school to disclose information to “state or local officials or authorities to whom [that] information is allowed to be reported or disclosed pursuant to state statute,” if that official certifies in writing “that the information will not be disclosed to …

Hipaa-Cracy, Carl E. Schneider

Articles

The Department of Health and Human Services has recently been exercising its authority under the (wittily named) "administrative simplification" part of the Health Insurance Portability and Accountability Act to regulate the confidentiality of medical records. I love the goal; I loathe the means. The benefits are obscure; the costs are onerous. Putatively, the regulations protect my autonomy; practically, they ensnarl me in red tape and hijack my money for services I dislike. HIPAA (a misnomer-HIPAA is the statute, not the regulations) is too lengthy, labile, complex, confused, unfinished, and unclear to be summarized intelligibly or reliably. (Brevis esse laboro, …

Lawyers And Domestic Violence: Raising The Standard Of Practice, John M. Burman

Michigan Journal of Gender & Law

Lawyers and judges should be the vanguard of those working to end domestic violence and mitigate its effects, yet they are not. This article is an attempt to change that. It strives to shed some light on the profound effect domestic violence has on law and law practice, as well as the profound effect lawyers and the legal system can have on domestic violence. Part II of this article demonstrates the extent and pervasiveness of domestic violence. Part III describes how domestic violence will affect a lawyer's practice. Part IV provides guidance on what a lawyer should do to determine …

In Light Of Reason And Experience: Against A Crime Fraud Exception To The Psychotherapist-Patient Privilege, Catherine Thompson Dobrowitsky

University of Michigan Journal of Law Reform

This Note argues against the adoption of a crime fraud exception to the federal psychotherapist-patient privilege. Part I argues that the restrictive legal elements of the privilege adequately exclude fraudulent or criminal statements from protection. Part II addresses the needed distinction between the dangerous patient exception and the crime fraud exception to the psychotherapist-patient privilege and concludes that the adoption of a crime fraud exception would threaten a limited dangerous patient exception. Part III contends that the policies underlying the attorney-client and psychotherapist-patient privileges must be distinguished and do not merit a shared crime fraud exception. This Note concludes that …

Professional Responsibility, Nicholas Rine, Ly U. Meng

Books

The study of professional responsibility is, of course, critical to those who wish to practice as lawyers. Without a clear understanding of the expectations of the profession, no lawyer will function effectively. Beyond that simple practical need, however, new lawyers need to have a realistic perspective on the competence and the limitations of their profession.

But the study of legal ethics is a valuable undertaking even for those who have no intention of becoming lawyers. Many people see the legal system as a mysterious set of rituals which make little sense. (And that perspective is not completely unrealistic.) For any …

Open Chambers?, Richard W. Painter

Michigan Law Review

Edward Lazarus has written the latest account of what goes on behind the marble walls of the Supreme Court. His book is not the first to selectively reveal confidential communications between the Justices and their law clerks. Another book, Bob Woodward and Scott Armstrong's The Brethren2 achieved that distinction in 1979. Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court, however, adds a new twist. Whereas The Brethren was written by journalists who persuaded former law clerks to breach the confidences of the Justices, Lazarus was himself a law clerk to Justice Harry Blackmun. Closed …

A Study In Regulatory Method, Local Political Cultures, And Jurisprudential Voice: The Application Of Federal Confidentiality Law To Project Head Start, Richard C. Boldt

Michigan Law Review

This article focuses on one particular set of issues raised by the effort to coordinate the activities of Head Start centers with those of substance abuse treatment programs and the introduction of treatment and prevention functions into the daily interactions of Head Start staff and parents. These issues involve the disclosure of potentially damaging information about a Head Start parent's drug or alcohol abuse and the confidentiality considerations that arise when she or he has sought or received treatment for that abuse. Although it is possible to characterize these issues as technical, doctrinal questions of statutory and regulatory interpretation, it …

A Study In Regulatory Method, Local Political Cultures, And Jurisprudential Voice: The Application Of Federal Confidentiality Law To Project Head Start, Richard C. Boldt

Michigan Law Review

This article focuses on one particular set of issues raised by the effort to coordinate the activities of Head Start centers with those of substance abuse treatment programs and the introduction of treatment and prevention functions into the daily interactions of Head Start staff and parents. These issues involve the disclosure of potentially damaging information about a Head Start parent's drug or alcohol abuse and the confidentiality considerations that arise when she or he has sought or received treatment for that abuse. Although it is possible to characterize these issues as technical, doctrinal questions of statutory and regulatory interpretation, it …

Starting From Scratch: The First Amendment Reporter-Source Privilege And The Doctrine Of Incidental Restrictions, Marcus A. Asner

University of Michigan Journal of Law Reform

This Note examines reporters' claims to a First Amendment reporter-source privilege in light of First Amendment doctrine as a whole. Part I briefly explains the current state of reporter-source privileges and the policies behind them. Part II then attempts to identify doctrinal support for the press's claim to a First Amendment privilege. Part II rejects the notion that the First Amendment affords special protection to the press as an institution. A reporter's status as a member of the institutional media is not irrelevant, however, and the well-established principle that the government may not target or single out the press for …

U.S. Law Of Attorney-Client Privilege As Applied To Non-U.S. Lawyers: A Reciprocity Issue?, Hetty L. Richardson

Michigan Journal of International Law

Part I of this note considers whether U.S. federal and state law applies the attorney-client privilege equally to communications with U.S. and non-U.S. attorneys. It concludes that, contrary to the ILP's position, the law on this issue is not firm. In light of the policy issues raised by the AM & S decision, part II considers factors that may justify discriminating between U.S. and non-U.S. lawyers, or among non-U.S. lawyers. It concludes that the public interest may be served best by extending the attorney-client privilege to communications with some, but not all, non-U.S. lawyers. Part III presents a proposal for …

Reflections On Alfred Hill's "Testimonial Privilege And Fair Trial", Peter Westen

University of Michigan Journal of Law Reform

I have learned a great deal from "Testimonial Privilege and Fair Trial"-as I always do from Professor Hill's work. Indeed, he has changed my way of thinking in this area in several important respects. At the same time, I come to rather different conclusions than he regarding each of his three major topics. Part I of this article examines the problem of finding a "remedy" for testimonial privileges that violate a defendant's right to a fair trial. Part II discusses the problem of determining when a defendant is entitled to assert that the "right" has been violated. Finally, Part III …

Deterring Misuse Of Confidential Government Information: A Proposed Citizens' Action, Joseph J. Kalo

Michigan Law Review

Part I of this article offers two examples-predicated on historical fact-that illustrate the possible adverse consequences of disclosure of confidential government information. Part I also examines present statutory and regulatory safeguards against such disclosure and analyzes their effect. Part II sets forth a proposal for reducing the possibility that confidential government information will be improperly used and for recouping government losses by means of a citizens' action. when it is so used.

The Newsman's Privilege: Protection Of Confidential Associations And Private Communications, Wayne C. Dabb Jr., Peter A. Kelly

University of Michigan Journal of Law Reform

The purpose of this comment is to determine whether the confidential associations and-or private communications of a newsman are privileged.

Professional Responsibility Of The Criminal Defense Lawyer: The Three Hardest Questions, Monroe H. Freedman

Michigan Law Review

In almost any area of legal counseling and advocacy, the lawyer may be faced with the dilemma of either betraying the confidential communications of his client or participating to some extent in the purposeful deception of the court. This problem is nowhere more acute than in the practice of criminal law, particularly in the representation of the indigent accused.

The Purposes Of Advocacy And The Limits Of Confidentiality, John T. Noonan Jr.

Michigan Law Review

The privilege of confidentiality between lawyer and client is a significant barrier to the search for truth and the attainment of justice. Since bankers, accountants, psychiatrists, and confessors are not entitled at common law to confidentiality in their relationships with those with whom they deal, one may well inquire why lawyers possess such an extraordinary privilege. In the early English case which established the lawyer-client privilege, counsel offered several justifications: (I) A "gentleman of character" does not disclose his client's secrets. (2) An attorney identifies himself with his client, and it would be "contrary to the rules of natural justice …

Professional Ethics In Criminal Trials: A View Of Defense Counsel's Responsibility, David G. Bress

Michigan Law Review

More than thirty years ago, in Berger v. United States, Mr. Justice Sutherland described the heavy and multiple responsibility assumed by a prosecutor. The United States Attorney, he asserted, not only must be an advocate for the prosecution, but also must ensure that justice prevails. The Justice stated: "It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Banking-Disclosure Of Records-The Duty Of A Bank As To Customer Information, Robert B. Wessling S.Ed.

Michigan Law Review

The purpose of this comment, therefore, is to describe the scope of the banker's duty as to customer information as best it can be discerned in light of the increasing exchange of credit information and increasing resort to such information by government agencies-particularly the Internal Revenue Service. In the process, it is hoped that attention will be drawn to the uncertainty which exists in this area, perhaps prompting action by the states or the banks themselves to clarify the scope of the duty and to encourage uniform treatment of customer information in a manner consistent with this duty.

Group For The Advancement Of Psychiatry: Confidentiality And Privileged Communication In The Practice Of Psychiatry, Henry Weihofen

Michigan Law Review

A Review of Confidentiality and Privileged Communication in the Practice of Psychiatry. Group for the Advancement of Psychiatry.

Constitutional Law - Deportation - Use Of Confidential Information In Denial Of Discretionary Relief, George F. Lynch

Michigan Law Review

Plaintiffs, husband and wife, were deportable aliens. At deportation hearings the plaintiffs asked the attorney general to grant discretionary suspension of deportation under section 19 (c) of the Immigration Act of 1917, as amended, which provided in part: "In the case of any alien ... who is deportable ... and who has proved good moral character for the preceeding five years, the attorney general may ... (2) suspend deportation ... if he finds (a) that such deportation would result in serious economic detriment to a citizen .... " Plaintiffs had three children who were all American citizens. The hearing officer …

Evidence-Privilege-Husband And Wife-Attorney And Client

Michigan Law Review

A husband and wife are involved in marital difficulties. Together they consult an attorney in an effort to compromise their dispute, or failing in that, to arrange a property settlement prior to separation or divorce. Such a joint consultation may be for any one of a variety of purposes. In a later action, for divorce or separate maintenance for example, the question arises whether either the attorney or one of the spouses can disclose words spoken by the other spouse in the consultation. For instance, can the attorney or the husband disclose the wife's admission of adultery?

Waiver Of The Statutory Protection To The Confidential Relation Of Physician And Patient, Harry B. Hutchins

Articles

Waiver of the Tatutory Protection of the Confidential Relation of Physician and Patient.--The subject of the disclosure by the physician upon the witness stand of confidential communications between himself and his patient has already received attention in this journal: 2 MICHIGAN LAW REVIEW, p.687; 3 MICHIGAN LAW REVIEW, p. 311. The case of Long v. Garey Investment Company, decided by the Iowa Supreme Court December 15, 1906, may be briefly noticed, as it discusses a phase of the subject in regard to which the courts are not in entire harmony, namely, the waiver of the privilege that the statute confers.