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Vanderbilt Law Review

First Page

1609

Abstract

Evidentiary privileges--that is, rules that empower people to withhold evidence from legal proceedings-are one thread in a mesh of secrecy powers that control the flow of information in society. They are part and parcel of the laws, rules, norms, and practicalities that determine who can conceal and who can compel, that allocate power based on access to knowledge and its opposite. Despite the significance of privileges and of the harms that they produce, our understanding of this body of law has profound gaps.5 The questions posed above turn out to be more challenging than they might at first appear. Notwithstanding the hard work of privilege law scholars who have shed important light on these issues, we lack clear answers to them. In short, as this Essay will show, we do not know precisely what privileges are, where they come from, what harms they produce and for whom, or whether they are justified. What should we make of this second-order ignorance of the rules of omission? History and philosophy of science offer a particularly incisive way of thinking about ignorance that is useful for contemplating the gaps in our knowledge of privilege law. Philosophers have devoted an entire field of epistemology to the question of how we come to know what we think we know. But its corollary, the study of how we come to not know, has proven more scattered and elusive. Recognizing this gap three decades ago, historian of science Robert Proctor popularized the term "agnotology" to describe the study of ignorance. Key among Proctor's insights-inspired by his personal experiences testifying against large tobacco companies that sought "to manufacture doubt about the hazards of smoking" is that ignorance is not merely the primordial state of knowledge yet to be received. On the contrary, ignorance can be actively produced. It can be "virtuous" (as in John Rawls's "veil of ignorance") or deplorable. It can be a resource, a strategy, or a calculated amnesia. The insight that social forces create our knowledge landscape, including its lapses, leads to the following question: to what extent, if any, has our ignorance of privilege law been actively produced?

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