Pseudonymous litigation

University of Chicago Law Review

Volumn 77, Issue SPEC. ISSUE, 2010, Pages 1239-1259

  Strahilevitz, Lior Jacob ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 78649943228     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (94)

1. Doe v Smith, 412 F Supp 2d 944, 945 (CD 111 2006);
2. Doe v Smith, 2005 WL 6082529, *1 (CD 111).
3. Doe v Smith, 412 F Supp 2d at 945.
4. See id at 946. The facts were in some ways reminiscent of a plot line in the 1999 comedie film American Pie, though Smith's behavior was more obnoxious than that of the movie protagonist's.
5. Omnibus Crime Control and Safe Streets Act of 1968, Title III, Pub L No 90-351,82 Stat 211, codified as amended at 18 USC § 2510 et seq.
6. See Doe v Smith, 2005 WL 6082529 at *1.
7. -429 F3d 706 (7th Cir 2005).
8. See id at 709-10 (reversing the trial court's dismissal of the case because the videotape might have had an audio track, which would be consistent with allegations of a Wiretap Act violation requiring "oral communication").
9. See id at 708-09.
10. Michaels v Internet Entertainment Group, Inc, 5 F Supp 2d 823, 842 (CD Cal 1998) (holding that an injunction was warranted because the plaintiffs faced irreparable injury that would be aggravated by the video's worldwide distribution via the Internet).
11. Doe v Smith, 429 F3d at 710 (emphasis added).
12. Id.
13. Id.
14. Doe v Smith, 412 F Supp 2d 944, 947 (CD 111 2006).
15. See id.
16. See, for example, Catharine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv CR-CL L Rev 1, 27-38 (1985) (describing pornography as inflicting harm upon the autonomy, credibility, and public image of women because " [subordinate but equal is not equal").
17. See Complaint, Doe v Smith, No 04-3173, ¶¶ 7-13 (CD Ill filed Aug 6,2004) (available on Westlaw at 2004 WL 3958388);
18. Answer, Doe v Smith, No 04-3173, *1-2 (CD Ill filed Feb 22,2006) (available on Westlaw at 2006 WL 809303) ("Smith Answer").
19. See, for example, Smith Answer at *3-4.
20. See Seventh Cir R 26.1(b), online at http://www.ca7.uscourts.gov/Rules/ rules.pdf (visited Feb 12,2010) (requiring any litigant using a pseudonym to file a disclosure statement revealing her real name).
21. -491 US 524 (1989).
22. Id at 527 n 2 (citations omitted).
23. Adam A. Milani, Doe v. Roe: An Argument for Defendant Anonymity When a Pseudonymous Plaintiff Alleges a Stigmatizing Intentional Tort, 41 Wayne L Rev 1659,1712 (1995).
24. See id at 1664-65.
25. Id at 1698.
26. See, for example, Bonome v Kaysen, 2004 WL 1194731, *2-6 (Mass Super Ct).
27. -647 A2d 1067 (Conn Super Ct 1994).
28. Id at 1073 (adding that instead, a court should weigh each party's interest in anonymity separately "against the public interest in open access to the courts").
29. Id at 1073-75 (reasoning that granting the defendants' request for anonymity would create a slippery slope and be contrary to the public's interest in learning of allegations against a large and well-known public institution).
30. See Doe v Smith, 429 F3d at 710.
31. Lior Jacob Strahilevitz, Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Nw U L Rev 1667,1679-82 (2008) (describing how landlords, employers, and other decisionmakers increasingly use public information about past litigation when evaluating counterparties).
32. Consider id ("[A] substantial market has developed for tenant screening services.").
33. Chris Carr and Larry Gorman, The Revictimization of Companies by the Stock Market Who Report Trade Secret Theft under the Economic Espionage Act, 57 Bus L 25, 48-49 (2001) (adding that these drops "impl[y] an expected abnormal decline in firm value of approximately $520 million per firm" during the period immediately following the public disclosure of the trade secret theft).
34. See id at 29.
35. See David D. Friedman, William M. Landes, and Richard A. Posner, Some Economics of Trade Secret Law, 5 J Econ Persp 61, 62-64 (1991).
36. See Kewanee Oil Co v Bicron Corp, 416 US 470, 479-92 (1974) (inquiring into whether a state trade secret law "clashe[d] with the objectives of the federal patent laws").
37. See Friedman, Landes, and Posner, 5 J Econ Persp at 69-70 (cited in note 33).
38. See, for example, FRCP 26(C)(1)(g) (providing parties with the ability to move for a protective order for "a trade secret or other confidential research" during the discovery process);
39. Cal Civ Code §3426.5 (West) (providing for the preservation of trade secrets in a judicial proceeding "by reasonable means").
40. Doe v A Corporation, 109 F2d 1043,1044 n 1 (5th Cir 1983), is a rare case where the disclosure of a defendant corporation's identity may have compromised that company's proprietary information. Perhaps if a firm's competitors do not realize that a trade secret exists, the revelation of such a "deep secret" could damage the firm.
41. See, for example, Doe v Frank, 951 F2d 320, 323 (11th Cir 1992) (describing the test for whether a litigant should be allowed to proceed anonymously as whether the litigant's privacy interest outweighs the "customary and constitutionally embedded presumption of openness in judicial proceedings"),
42. quoting Doe v Stegall, 653 F2d 180,186 (5th Cir 1981).
43. Seattle Times Co v Rhinehart, 467 US 20,32-36 (1984).
44. Email from Karl-Nikolaus Peifer, Professor of Law, University of Cologne, to Lior Jacob Strahilevitz (Nov 12,2009) (on file with author).
45. Consider John Schwartz, Two German Killers Demanding Anonymity Sue Wikipedia's Parent, NY Times A13 (Nov 13,2009) (reporting that two released killers have used a German law that allows "suppression of a criminal's name in news accounts once he has paid his debt to society" to pressure the German-language Wikipedia site to remove their names).
46. See Joel M. Schumm, No Names, Please: The Virtual Victimization of Children, Crime Victims, the Mentally III, and Others in Appellate Court Opinions, M Ga L Rev 471, 519 (2008) (noting the "commonplace" nature of anonymous judgments in Europe).
47. See, for example, Anthony Ciolli, Lowering the Stakes: Toward a Model of Effective Copyright Dispute Resolution, 110 W Va L Rev 999,1013-14 (2008) (observing that for "low stakes" copyright disputes the average cost of mediation is only $50,000, while a full trial typically costs five times that amount).
48. Consider Scott A. Moss, Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age, 58 Duke L J 889,909 (2009) (describing widely shared views that the burdensome costs of litigation drive parties towards settlement in all but the most serious cases).
49. See generally HollaBack New York City, online at http://hollabacknyc. blogspot.com (visited Feb 12,2010).
50. Paul Resnick and Richard Zeckhauser, Trust among Strangers in Internet Transactions: Empirical Analysis ofeBay's Reputation System, 11 Advances Applied Microecon 127,141 (2002) (noting that buyers commented on sellers for 52.1 percent of items sold, and sellers on buyers for 60.6 percent of items sold).
51. Danielle Keats Citron, Cyber Civil Rights, 89 BU L Rev 61,72-81 (2009);
52. Brian Leiter, Cleaning Cyber-Cesspools: Google and Free Speech, in Saul Levmore and Martha C. Nussbaum, eds, The Offensive Internet: Speech, Privacy, and Reputation *4 (Harvard forthcoming 2010) (describing AutoAdmit as a "cesspool of infantile morons, racists, and misogynistic freaks");
53. Mary Anne Franks, Sexual Harassment 2.0 *5-8 (unpublished manuscript, Feb 2010), online at http://ssrn.com/abstract= 1492433 (visited Feb 12,2010) (same).
54. See Omri Ben-Shahar, One-Way Contracts: Consumer Protection without Law *29-32
55. (University of Chicago John M. Olin Law and Economics Working Paper No 484, Oct 2009), online at http://ssrn.com/abstract=1484928 (visited Feb 12,2010) (explaining that the potential for negative ratings in certain online fora can serve as a greater deterrent against breach of contract than common law remedies).
56. John A. Centra, Will Teachers Receive Higher Student Evaluations by Giving Higher Grades and Less Course Work?, 44 Rsrch Higher Educ 495,495-96 (2003).
57. George S. Howard, Christine G. Conway, and Scott E. Maxwell, Construct Validity of Measures of College Teaching Effectiveness, 77 J Educ Psych 187,195 (1985).
58. Id.
59. Kenneth A. Feldman, Effective College Teaching from the Students' and Faculty's View: Matched or Mismatched Priorities?, 28 Rsrch Higher Educ 291,298-99,319-21 (1988) (describing the tendency of students and teachers to value qualities like preparation, organization, and openness to student opinions similarly when describing what makes for good teaching).
60. Consider Mareike Kunter and Jürgen Baumert, Who Is the Expert? Construct and Criteria Validity of Student and Teacher Ratings of Instruction, Learning Envir Rsrch 231,240-42 (2006) (finding that among secondary school students in Germany, correlations between student evaluations and teacher peer evaluations were very high for classroom management and teacher accessibility, but low for assessing the appropriate pacing of instruction).
61. See Theodore Coladarci and Irv Kornfield, RateMyProfessors.com versus Formal InClass Student Evaluations of Teaching, 12 Prac Assess, Rsrch & Eval 1-2 (May 2007), online at http://pareonline.net/genpare.asp?wh=0&abt=12 (visited May 5,2010).
62. See, for example, Jesse M. Heines, Comparing Free-Form Student Evaluations on RateMyProfessors.com with Those on a University-Based System *5-6 table 1 (unpublished manuscript, 2006), online at http://teaching.cs.uml.edu/~heines/academic/papers/2006ccscne/ CCSCNE2006-submission.pdf (visited Feb 12,2010) (comparing the scores of the author to those of recent recipients of Baylor University's award for distinguished teaching).
63. Elizabeth Davison and Jammie Price, How Do We Rate? An Evaluation of Online Student Evaluations, 34 Assess & Eval Higher Educ 51,52-53 (2009) (delineating shortfalls like a lack of safeguards to ensure external validity). Their tone becomes more balanced toward the end of the article. See id at 62 (noting that websites like RateMyProfessors can be informative when they "rank the more serious academic factors" in order to focus students on the most relevant characteristics of effective teaching).
64. Id at 54.
65. Id at 51,62. This conclusion is a statement against interest by the researchers, whose teaching evaluations on RateMyProfessors.com were good (in the case of Davison) and excellent (in the case of Price).
66. See Beth Davidson [sic] -Appalachian State University, online at http://www.ratemyprofessors.com/ShowRatings.jsp?tid=198337 (visited Feb 12,2010) (reporting overall quality of 3.8 out of 5);
67. Jammie Price-Appalachian State University, online at http://www. ratemyprofessors.com/ShowRatings.jsp?tid=585057 (visited Feb 12, 2010) (reporting overall quality of 4.3 out of 5).
68. See, for example, James Felton, et al, Attractiveness, Easiness, and Other Issues: Student Evaluations of Professors on Ratemyprofessorscom, 33 Assess & Eval Higher Educ 45,54-60 (2008). Felton and coauthors evidently assume that ease and attractiveness influence the overall teaching quality score, but do not discuss the plausible hypothesis that student perceptions of instructor quality influence their views of the professors' attractiveness and the ease of the course.
69. Davison and Price, 34 Assess & Eval Higher Educ at 52,62 n 3 (cited in note 53).
70. Id at 52 (suggesting that students who either loved or hated an instructor are more likely to post because of the time it takes to register and log in).
71. Id.
72. Coladarci and Kornfield, 12 Prac Assess, Rsrch & Eval at 8 (cited in note 51).
73. Id (finding statistically significant correlation, but noting that the data points for these factors show "considerable scatter").
74. See notes 47-51 and accompanying text.
75. See Strahilevitz, 102 Nw U L Rev at 1708 & n 197 (cited in note 29) (exploring research into the positive effect that "[w]ritten venting" has on consumer satisfaction, employee satisfaction, and general health).
76. See Kenworthey Bilz, The Puzzle of Delegated Revenge, 87 BU L Rev 1059,1111-12 (2007).
77. Id at 1086-91 ("Social status is, by definition, social: I cannot get it unless others agree I should have it. Others punishing on my behalf is an indication they think I should.").
78. Id at 1100-11.
79. To the extent that a plaintiff in a pseudonymous lawsuit is known to intimates and acquaintances, but unknown to the general population, a victory in pseudonymous litigation may have some salutary effects on her social status within her immediate circle. See generally Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U Chi L Rev 919 (2005). Of course, evidence that the plaintiff has disclosed her involvement in pseudonymous litigation to her peers may be used to undermine her argument for pseudonymous status under a "have your cake and eat it too" rationale. Consider text accompanying note 11.
80. There may be an additional significant distinction between the criminal prosecutions described by Bilz (where the state may pursue the victimizer even if the victim declines to press charges) and civil suits (where the victim's willingness to proceed in the forum is a prerequisite to the state's willingness to involve itself in the dispute). Because the state is acting only as the resolver of disputes, as opposed to acting as both the prosecutor and adjudicator, it is plausible that the social status restoration benefits of civil litigation are more attenuated, even where a plaintiff sues using her real name.
81. See Strahilevitz, 102 Nw U L Rev at 1678-79 (cited in note 29) (describing the way that landlords in New York used court records to avoid litigious tenants because of the extremely high eviction costs imposed by city regulations).
82. Citron, 89 BU L Rev at 71-75 (cited in note 45).
83. See, for example, id at 73 (noting how one anonymous poster was told she deserved a "Congressional medal" when she posted a proposed attack email "as a warning to all those who would try to regulate the more antisocial posters-we have the power now").
84. See, for example, FRCP 16(a)(5) (including "facilitating settlement" as a reason for pretrial conferences).
85. Lilian Edwards and Ashley Theunissen, Creating Trust and Satisfaction Online: How Important Is ADR?: The eBay Experience, 5 Web J Current Legal Issues (2007), online at http://webjcli.ncl.ac.uk/2007/issue5/edwards5.html (visited Feb 12,2010).
86. Consider Feedback FAQ, online at http://www.amazon.com/gp/help/customer/ display.html ?nodeId=1161284&#respond (visited Feb 23,2010) ("If you want to respond to negative feedback, the best option is to work with the buyer to improve the situation that led to the negative feedback. Then, ask the buyer to remove the feedback.").
87. See Moss, 58 Duke L J at 909 (cited in note 42). Of course, settlement and resolution of a dispute are different things.
88. See Owen M. Fiss, Against Settlement, Yale L J 1073, 1085-86 (1984) (arguing that a judge's "job is not to maximize the ends of private parties, nor simply to secure the peace, but to explicate and give force to the values embodied in" the law through proper adjudication).
89. See Daniel A. Farber, Do Theories of Statutory Interpretation Matter? A Case Study, 94 Nw U L Rev 1409,1409-10 (2000) (identifying Judge Richard Posner's role as "a leading pragmatist" and Judge Easterbrook's role as "a leading textualist").
90. See note 45 and accompanying text.
91. See note 8 and accompanying text.
92. Consider Jayne S. Ressler, Privacy, Plaintiffs, and Pseudonyms: The Anonymous Doe Plaintiff in the Information Age, 53 U Kan L Rev 195, 253 (2004) (arguing that judges' decisions about whether to grant pseudonymity should be sensitive to the possibility that without the availability of pseudonymity to the plaintiff, issues of first impression will not be litigated).
93. See FRCP 5.2(d).
94. For both technological and First Amendment reasons, it is far easier to keep information out of the public domain in the first instance than it is to erase information that has been publicized. Therefore, pseudonymity ought to be maintained until there is a final judgment, rather than appearing and disappearing as the litigation proceeds.