Professor Levinson distinguishes two difficulties in the law of testimonial privilege. The first is that of identifying the core of concerns that the law of privilege is intended to address. The second is that of explaining how the structure of the positive law "fits" these core concerns. Analysis of the first difficulty shows that privilege law imputes to intimacy a value that is not reducible to the individualistic concerns that underlie the privilege against self-incrimination. Discussion of the second difficulty reveals that the law evasively and unthinkingly has compromised the value it would-and ought to-accord to intimate relationships.
Testimonial Privileges and the Preferences of Friendship,
1984 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol33/iss4/1