Originally uploaded at SSRN.


In Jaffee v. United States, 116 S. Ct. 1923 (1996), the U.S. Supreme Court recognized a testimonial privilege protecting the patient-psychotherapist relationship. Its decision is based on Rule 501 of the Federal Rules of Evidence, which permits courts to decide novel questions of privilege in the light of reason and experience. The Court held that this rule authorized not only recognition of a new privilege, but also a privilege of a broad scope, extending to relationships between patients and licensed clinical social workers. Its decision came as a mild surprise, given a widely shared assumption that Rule 501 creates a strong presumption against establishment of new privileges. T

his article criticizes the Court's reliance on an instrumental rationale, one that sees privileges as a means to the end of encourging individuals to seek needed psychotherapeutic assistance. After examining the etymology of the statutory terms reason and experience, the article argues that the Court should have explored a humanistic, privacy-focused rationale for its decision. Still, the article concludes, the Court arrived at the correct result, and in so doing, offered important insight into the meaning of those key statutory terms.

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