Although the Supreme Court provided guidance on when a court should entertain a crime-fraud exception claim in United States v. Zolin, that case did not specify how much or what kind of proof is necessary, or how much evidence of intent by the client is required, for a court to invoke the exception and overcome the application of the privilege. State courts and the lower federal courts have since been left to grapple with this important issue on a case-by-case basis and have reached differing conclusions. This Article examines the law that has developed in this area since the Supreme Court decided Zolin and argues that setting too high a bar for application of the crime-fraud exception is inconsistent with the policy grounds that underlie the attorney-client privilege and can have serious adverse consequences for the administration of justice.
Scholars have long critiqued the principles that animate what I have termed the equal protection right to compete. Less attention, however, has been paid to whether existing doctrine actually promotes this vision of equality. One might presume that it does. Yet empirical findings spanning employment, law enforcement, and education suggest the opposite. Specifically, scholarship from the mind sciences reveals that common facially neutral evaluative tools—such as human judgment, standardized tests, and predictive algorithms—can systematically mismeasure an individual’s existing talent and potential (that is, merit) because of her race. Accordingly, when decisionmakers rely on such “racial mismeasures” to determine whom to hire or admit, they effectively compromise each candidate’s right to an individualized, meritocratic, and race-free review.
This Article’s review of lower court decisions from the decade since the Supreme Court decided Credit Suisse shows that Trinko and Credit Suisse have had a surprisingly limited impact in many regulated markets. While defendants in a range of cases have relied on Trinko and Credit Suisse to seek antitrust immunity or argue that regulation is sufficient to protect competition, outside the financial sector courts have applied those cases narrowly to preserve antitrust’s role. The story is different for cases involving the financial markets, however. There, courts have been more willing to find implied antitrust immunity or that regulation otherwise supplants antitrust. As a result, it appears that the task of confronting heightened concentration and reduced competition in the financial sector increasingly will fall to the sector regulators, especially the U.S. Securities & Exchange Commission (SEC) and the U.S. Commodity Futures Trading Commission (CFTC).