When Fear Rules in Law's Place: Pseudonymous Litigation as a Response to Systematic Intimidation

Benjamin P. Edwards, Michigan State University College of Law

Abstract

When reprisals and intimidation make certain types of cases too risky for most plaintiffs to file, courts should preserve access to justice by allowing more plaintiffs to proceed pseudonymously. As it stands, courts may be deciding requests to proceed under a pseudonym without understanding the full scope of possible retaliation risks, including that past retaliation may work continuing harm through the stress created by fear.

Unusually heightened retaliation risks may be best exemplified by the nasty reprisals befalling plaintiffs in separation of church and state cases. Although multiple books addressed the issue in the mid-90s, the violent trend has continued since that time. This Article traces that trend further into the current day to provide a more accurate assessment of systemic risks. A timely understanding of the current environment is essential because courts have begun to express skepticism about whether the risk remains or whether a few dated, anecdotal accounts actually constitute a trend. As courts and practitioners seek guidance about requests for pseudonymity today, there is urgent need for information and guidance on this issue. This Article’s guidance reaches beyond the separation of church and state context to argue that courts should alter their analysis when faced with any set of cases generating similar trends.