Using Poison to Treat Poison as an Antidote: Stimulating Corporate Self-Compliance with the Self-Evaluative Privilege

Abstract

The status of case law governing the emerging self-evaluative privilege (SEP) has been in disarray for several decades, with commentators in disagreement. To resolve the issue, this Article proposes that courts adopt the SEP to encourage corporate self-regulation. To serve the public policy behind this new kind of privilege, the Article proposes a definitional test (drawn from a critique of the conflicting case law), together with a mechanism for the test to be applied when an SEP claim is made. The Article then applies this test to securities broker-dealer firms as a case study. In conclusion, the Article also suggests that the test may become the basis for proposing an amendment to the Sarbanes-Oxley Act codifying the adoption of the SEP for public corporations, which the author wants to table in a follow-up article.