University of Chicago Press
Few cases from the October 1997 Supreme Court term received as much public attention as Swidler & Berlin v United States, which held that the attorney-client privilege survives the death of the client in federal criminal proceedings. If one focuses solely on the issue actually decided in the case, that degree of attention is surprising. The issue had not generated a split among the federal circuits, and there were relatively few decisions-federal or state-squarely on point. The Court's holding was thus unlikely to have a major impact on American law; the paucity of prior case law demonstrates that the question of the survivability of the attorney-client privilege in criminal cases was not crying out for quick resolution by the Supreme Court. Indeed, an observer unfamiliar with Swidlers background might well wonder why a Court that has been dramatically cutting back on its docket even took the time to decide such a minor case.
Gary S. Lawson,
Taking Notes: Subpoenas and Just Compensation
University of Chicago Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1046