Profs. Benjamin Edwards, Jayne S. Ressler, Joan Steinman, and I—who are among the few academics who have written on the American law of pseudonymous litigation—have just filed an amicus brief in Doe v. Trustees of Indiana Univ., supporting a petition that asks the court to consider this case, and help guide lower federal courts about when pseudonymity should be available. Here's our Summary of Argument; you can also read the whole brief (and I expect to post some excerpts from it as well):
[1.] In more than a thousand federal cases each year, plaintiffs endeavor to file under a pseudonym. Sometimes, courts explicitly permit this. Sometimes, they do not. Sometimes, they do not address the issue at all.
Decisions about whether to permit pseudonymity are important. They affect the public's right to monitor and supervise the work of the federal courts. They affect the incentives to bring or not bring a case, and to defend or settle it. They affect the accuracy and efficiency of the judicial process. They may cause unfairness to the parties.
[2.] Yet this Court has never decided whether or when pseudonymity is appropriate. At times it has allowed pseudonymous cases to come before it, but without setting forth any test for when courts should allow pseudonymous litigation. Left adrift, twelve circuit courts developed different tests that have led to different results for similarly situated litigants.
Petitioners correctly identify a circuit split. But because many of the factors under the various circuits' tests are so vague, courts also routinely disagree on how to apply those factors, thus often producing inconsistent results. Courts do not agree, for instance, on when pseudonymity should be allowed in cases involving alleged sexual assault, mental illness, or copyright-infringing use of pornography. They do not agree on whether pseudonymity should be available to protect a plaintiff's reputation and employment prospects. And the list goes on.
[3.] This inconsistency is likely to endure, unless this Court steps in. Every circuit reviews pseudonymity determinations for abuse of discretion, which usually leads to the trial court's determination being upheld: Both a decision to grant pseudonymity and a decision to deny it, on the same facts, could easily be viewed as within the district court's discretion.
As a result, circuit courts generally will not set precedents that harmonize lower court decisions about pseudonymity. Similarly situated litigants will continue to be treated differently. And practitioners and prospective litigants will remain in the dark about whether pseudonymity will be available. This Court should grant certiorari to provide at least some guidance to lower courts on these important matters.
Thanks to Stanford Law School students Charles Edward Power, Andrew P. Thompson, and Olivia Morello, who worked on the brief with me.
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