Cite as: 524 U. S. 666 (1998)
Breyer, J., dissenting
tion presented here. In other words, we must ask not, "what did Murphy hold," but "was Murphy right?"
B
Since Murphy is prevailing law, the majority bears the burden of showing that Murphy is wrong; and the majority says that Murphy's reasoning is "fatally flawed" and legally "unsound." Ante, at 687-688. But it is not. Murphy's reasoning finds in Malloy's holding (that the privilege binds the States) a need to reexamine the "same sovereign" rule, first set forth in the earlier case of Murdock. Without reexamination, Murdock's rule would have permitted State and Federal Governments each to have compelled testimony for use by the other. Murphy's reasoning then finds the "same sovereign" rule unsound as a matter of history and of the basic purposes of the privilege.
Murphy's use of legal history is traditional. It notes that Murdock rested its own conclusion upon earlier English and American cases. It reads the language of those cases in light of the reasons that underlie it. It says that, so read, those cases did not stand for a "same sovereign" rule, but suggested the contrary. And it concludes that Murdock's legal pedigree is suspicious or illegitimate. In a word, Murphy examines Murdock's historical pedigree very much the way that the majority today analyzes that of Murphy. The difference, however, is that Murphy makes a better case for overturning its predecessor than does the majority.
I can reiterate the essence of Murphy's analysis, amending it to fit the present case, roughly as follows:
1. Murdock thought that English law embodied a "same sovereign" rule, but it did not. Two early English cases, one decided in 1749 and the other in 1750, held that the privilege applied even though the feared prosecution was, in the one case, in Calcutta, and in the other, by ecclesiastical authorities. East India Co. v.
707
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