Draft Article V of the Federal Rules of Evidence on Privileges, One of the Most Influential Pieces of Legislation Never Enacted: The Strength of the Ingroup Loyalty of the Federal Judiciary

As the Introduction to the article notes, one of the well settled bromides in statutory construction is that the court should attach little or no weight to legislative inaction. There are so many possible explanations for a legislature's decision not to enact a bill or a particular provision of a bill that it is treacherous in the extreme to infer legislative intent from inaction. In some cases, though, in construing an enacted statute, a court may put legislative inaction to a legitimate, negative use. Suppose, for example, that during its deliberation over a bill the legislature rejected certain proposed language for a provision. That action may justify an inference that the legislature did not intend the enacted provision to operate in the fashion indicated by the rejected language. While courts occasionally put legislative inaction to such a limited negative use, they almost never rely on legislative inaction as the basis for affirmatively adopting a construction consistent with the rejected provision. Yet, that is exactly what has happened with draft Article V of the Federal Rules of Evidence on privileges. When the Supreme Court approved its draft of the Federal Rules, Article V included 13 rules, four general provisions and nine devoted to specific privileges. However, when the Court transmitted the draft to Congress, Article V proved to be so controversial that Congress blocked the Court's promulgation of the rules. During its subsequent deliberation over the proposed rules, Congress decided to reject draft Article V in its entirety. Instead, Congress compromised and adopted the current Rule 501, authorizing the federal courts to develop privilege doctrine in accordance with the principles of the common law as they may be interpreted . . . in light of reason and experience. Despite Congress' wholesale rejection of draft Article V, in the past 30 years the federal courts have in effect resurrected the draft by generally construing Rule 501 as requiring the very same outcomes that were prescribed by the draft. Part I of the enclosed article traces the history of draft Article V and demonstrates the remarkable extent to which the federal courts have breathed life back into the draft. Part II explores a number of possible explanations for this extraordinary phenomenon. Part II initially discusses a number of explanatory hypotheses based on either evidentiary policy or politics. However, ultimately Part II concludes that the most powerful explanatory hypothesis is that the federal judiciary's subconscious ingroup loyalty and outgroup bias have prompted the courts to consistently resolve close privilege questions in favor of the outcomes prescribed by draft Article V. Part II surveys the psychological literature on ingroup loyalty, identifies the factors which trigger such loyalty, and establishes that those factors are present here. The article concludes by drawing broader implications for legislators drafting statutes with separation of powers overtones and for judges tasked to interpret such statutes.