Earlier this week, I shared a portion of the friend-of-the-court brief that myself and three other law professors prepared in support of a certiorari petition in Doe v. Trustees of Indiana Univ.. This case addresses the issue of litigating as John or Jane Does. In this final section, we highlight the significance of the Supreme Court’s review given the way appellate courts currently review district court decisions in this area.
[III.] If this Court does not act, inconsistent pseudonymity determinations will persist
The inconsistency among district court decisions is unlikely to be resolved by the circuit courts, as they only review the trial court’s conclusion for abuse of discretion. This lack of de novo review hinders the development of clear legal rules regarding pseudonymity requests. Instead of establishing clear guidelines, the abuse of discretion standard results in varied interpretations among the Courts of Appeals.
Many pseudonymity determinations fall into a grey area where reasonable judges could disagree. Under an abuse of discretion review, circuit courts allow for a range of decisions, leading to uncertainty for future cases. This uncertainty contrasts with areas like First Amendment or Fourth Amendment law, where appellate decisions provide clearer guidance through independent appellate review.
Only a precedent from the Supreme Court can offer the necessary guidelines for consistent decisions on pseudonymity requests. This clarity and consistency are crucial for this field of law.
