You may learn the PDF right here and the textual content right here; listed below are the opening sections:
Writers could have their noms de plume; revolutionaries could have noms de guerre. Right here, although, we are going to communicate of (to coin a phrase) the noms de litige, and ask: When pseudonymous litigation is allowed, what types of pseudonyms must be used? Particularly, how can we keep away from dozens of Doe v. Doe precedents or Doe v. College of __, all completely different but identically named? This piece discusses some approaches to reaching the dual targets of pseudonyms: defending privateness and avoiding confusion.
The Choices
Courts typically disfavor pseudonymous litigation, however generally permit it. Certainly, they often themselves pseudonymize circumstances for publication, even when the social gathering names stay within the courtroom data. Each courts and events additionally generally pseudonymize the names of nonlitigant witnesses and victims. However what sorts of pseudonyms must be most well-liked? There are various choices, together with:
- Conventional pseudonyms, similar to John and Jane Doe, Richard Roe, Paul and Pauline Poe (and even Francis Foe, Walter Woe, or Xerxes Xoe), XYZ Co., Nameless, or the archaic Noakes or Stiles. Unsurprisingly, there are different names which can be utilized in different Anglophone authorized techniques, as an illustration “Ashok Kumar” for unnamed defendants in Indian copyright litigation, and which can be more likely to make their means into American courtroom someday.
- Fictitious pseudonyms, unrelated to the social gathering’s title, similar to Wesley Goffs.
- Fictitious first names-plus-initials, similar to Wesley G.
- Fictitious initials, similar to W.G.
- Widespread names, similar to Smith.
- Pure initials of the social gathering, similar to E.V.
- First names plus initials of the social gathering, similar to Eugene V.
- Names based mostly on the social gathering’s initials, maybe following the brand new Navy-Marine Corps Courtroom of Prison Appeals desire for the army alphabet or the Greek alphabet, similar to “Dr. Alex Foxtrot” or “Colonel Donna Whiskey” for, say, Alan Franks or Diane Walters.
- Impartial descriptive pseudonyms, similar to Pseudonym Taxpayer, Rose and David Septuagenarian, or Hmong I.
- Probably argumentative pseudonyms, or extra broadly ones which can be more likely to arouse sympathy, similar to Jane Endangered and Jane Imperiled, Whistleblower, Sufferer A, or Navy Seal.
- Well-known-name pseudonyms, similar to Publius, Hester Prynne from The Scarlet Letter, Gertrude Stein, or Marie, Joseph, and Carol Danvers from the Ms. Marvel/Captain Marvel comics.
- Even possible puns, similar to Femedeer (doe, a deer, a feme deer).
(I focus right here on pseudonyms chosen for the aim of litigation; when events have already got well-established pseudonyms, as an illustration as authors, there could also be cause to retain them, assuming that such pseudonymity in litigation is discovered to be allowed.)
The Prices and Advantages
Every choice, unsurprisingly, has its strengths and weaknesses.
Conventional pseudonyms strongly sign that the social gathering is pseudonymous (although there are after all many hundreds of actual folks with these names); so do impartial descriptive pseudonyms. However each of those approaches make it tougher to uniquely and clearly determine circumstances, particularly when the opposite social gathering is a frequent defendant, such because the federal authorities, a college, or a fellow Doe.
That is after all already a threat with frequent actual names, similar to Johnson, however it’s particularly severe with Doe circumstances. To offer only one instance, there are six Doe v. Trustees of Indiana College circumstances simply from 2020 to 2022 which have yielded opinions obtainable on Westlaw, all in the identical area (greater schooling regulation). These appear more likely to be joined by new circumstances annually, and they’re going to stay doubtlessly citable for many years to come back.
Widespread names (similar to Smith or Johnson) have a few of the issues of Doe, with out the benefit of rapidly signaling that the social gathering is pseudonymous.
Pure initials keep away from these issues, however can “make[] for poor readability” and be “dehumanizing” (or, maybe extra exactly, “depersonalizing”) — “human beings are the topic of … circumstances, not acronyms.” That is possible much more true of alphanumeric combos that sometimes seem in such circumstances, similar to P3, V7, or JA-836 Doe. The initials of various folks in the identical case are additionally pretty more likely to coincide, particularly when the events share a final title.
First-name-plus-initial will be much less ambiguous and fewer depersonalizing, however may be too revealing of the events, particularly when “the names … are pretty uncommon.” Certainly, even pure initials will be figuring out, when coupled with different indications, such because the small faculty that the social gathering is attending.
Well-known pseudonyms will be distracting, and also can carry political spin that may subtly affect the choose or jury, as with Hester Prynne (the title of the heroine in The Scarlet Letter, who was publicly shamed for adultery, utilized in a problem to a intercourse offender registration regulation). Some descriptive names, similar to “Jane Endangered,” can have the identical impact. So can descriptive names which can be skilled designations, similar to “Navy Seal 1” — whereas a celebration’s occupation and accomplishments will after all usually be a part of the file, indicating them as a part of the social gathering’s title would possibly generally give the social gathering an unfair, if slight, benefit.
Arbitrary names can threat inadvertently implicating another person who has that title. To offer one instance from the Ninth Circuit:
The plaintiffs on this case beforehand had been denominated “James Rowe, Jane Rowe and John Doe.” One of many many individuals genuinely named “James Rowe” wrote to the courtroom whereas the enchantment was pending, and stated that his fame was harmed by a newspaper story concerning the enchantment, as a result of careless readers would possibly suppose erroneously that he’s a convicted intercourse offender…. It’s preferable for legal professionals and courts to keep away from hurt to the reputations of actual individuals by utilizing … conventional references for pseudonyms.
A Presumptive Answer?
Maybe one of the best answer for a solo pseudonymous social gathering is the one utilized by the Equal Employment Alternative Fee in its choices coping with discrimination by federal employers: It makes use of an arbitrary first title (typically matched to the gender of the social gathering however to not every other traits, similar to ethnicity) coupled with an arbitrary preliminary, similar to “Christopher M.” Courtroom opinions together with such names would presumably want to notice that they’re pseudonyms, since not less than at first the general public would assume in any other case. However as soon as that’s executed, utilizing such pseudonyms must keep away from the majority of the issues famous above.
This strategy could also be much less efficient when there are a number of pseudonyms that have to be used (both for events or for witnesses or victims), since which will find yourself too complicated for some members. As one courtroom described,
Proof already submitted highlights the issues pseudonyms would possibly pose within the current motion, and the confusion it will probably produce. At the very least two girls [among the litigants] use the pseudonym “Gertrude Stein,” and 9 girls are referred to easily as “Guerrilla Lady.” One lady can not bear in mind “her Guerrilla Lady pseudonym” so she has adopted the title “Chansonetta Stanley Emmons” for this litigation. Different girls “modified their minds about their pseudonyms” and adopted new ones a part of the best way by means of their affiliation with the Guerrilla Women.
Plaintiffs and defendants have conflicting accounts of the involvement of “Romaine Brooks” (Susan Doe 4) and “Zora Neale Hurston” (Susan Doe 5) on this litigation. The girl that plaintiff Erika Rothenberg is aware of as “Romaine Brooks” knowledgeable her in March 2004 that she had not agreed to take part within the current litigation, however the defendants have submitted an authorization dated October 2003 by “Romaine Brooks” allowing them to embody her in it. Equally, in March 2004 Rothenberg spoke to the lady she is aware of as “Zora Neale Hurston” and was instructed that “Hurston” had not agreed to sue, however defendants have submitted an authorization dated October 2003 and a declaration dated June 2004 from “Zora Neale Hurston” in assist of her involvement within the litigation. To conduct a trial in such an environment, all of the whereas utilizing solely pseudonyms, guarantees hassle and confusion.
Actual-first-name-plus-initial (e.g., Erika R. if Rothenberg had needed a pseudonym) could be a lot clearer, although on the value of accelerating the danger that the plaintiff might be recognized. Actual initials (e.g., E.R.) would possibly likewise have been clearer. And it could have been clearer nonetheless if the events had appeared below their actual names, which is what the courtroom in the end insisted on. Nonetheless, if there is only one pseudonymous social gathering, there must be a lot much less threat of such confusion.
…
