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All three judges filed concurring opinions on the existence and potential scope of a common law privilege.
The ruling also failed to respect the nearly universal consensus among states that there is a common law privilege for protection of reporters' confidential sources.
In a report issued by the New York City Bar Association last fall, we maintained that the arguments favoring a federal common law privilege are overwhelming.
Judge Karen L. Henderson, who was appointed by the first President George Bush, said the question of a common law privilege was left open by the Branzburg decision.
Despite the ruling against them, lawyers for the reporters took some comfort in the debate that the judges engaged in over the existence and potential scope of a common law privilege.
But the judges disagreed about whether evolving legal standards reflected in lower court decisions and state statutes might provide a separate, nonconstitutional basis for protection to reporters in some circumstances, under a so-called common law privilege.
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Physicians, as a rule, must answer all questions since there is no common-law privilege regarding confidential information furnished by the patient.
Tatel sought to determine whether journalists were also entitled to a common-law privilege, as the D.C. Circuit had recently found for psychotherapists regarding their confidential communications with their patients.
The Second Circuit ruled that phone records — even those held by a third party, such as a phone company — were subject to the same common-law privilege that would apply to the journalists' own records.
The Second Circuit ruled that phone records even those held by a third party, such as a phone company were subject to the same common-law privilege that would apply to the journalists' own records.
It is doubtful whether and to what extent the common-law privilege of an accused, barred as a witness, to address the jury prevailed in Georgia, but it is a fair guess that the practice was far less than uniform.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com