Short Take: How Many “Does” Are There?

At VC, noted ‘nymophobe (just kidding) Eugene Volokh runs through his Judicature article on the choice of pseudonyms. Most of us take for granted that pseudonymous litigants will use the name “John Doe” or “Jane Roe,” but that gives rise to a problem.

To give just one example, there are six Doe v. Trustees of Indiana University cases just from 2020 to 2022 that have yielded opinions available on Westlaw, all in the same field (higher education law). These seem likely to be joined by new cases each year, and they will remain potentially citable for decades to come.

This is no joke. When discussing Title IX cases, most of which (thankfully) are pseudonymous and almost all of which use the “Doe” formulation, it’s difficult to distinguish which case one’s referring to. Let’s face it, Doe v. Random University isn’t exactly a useful indicator anymore, and it’s going to get worse.

But if not Doe and Roe, then what? Eugene provides a list of other options.

  1. Traditional pseudonyms, such as John and Jane Doe, Richard Roe, Paul and Pauline Poe (or even Francis Foe, Walter Woe, or Xerxes Xoe3), XYZ Co., Anonymous, or the archaic Noakes or Stiles.4 Unsurprisingly, there are other names that are used in other Anglophone legal systems, for instance “Ashok Kumar” for unnamed defendants in Indian copyright litigation, and that are likely to make their way into American court one day.5
  2. Fictitious pseudonyms, unrelated to the party’s name, such as Wesley Goffs.6
  3. Fictitious first names-plus-initials, such as Wesley G.7
  4. Fictitious initials, such as W.G.8
  5. Common names, such as Smith.9
  6. Pure initials of the party, such as E.V.10
  7. First names plus initials of the party, such as Eugene V.11
  8. Names based on the party’s initials, perhaps following the new Navy-Marine Corps Court of Criminal Appeals preference for the military alphabet or the Greek alphabet, such as “Dr. Alex Foxtrot” or “Colonel Donna Whiskey” for, say, Alan Franks or Diane Walters.12
  9. Neutral descriptive pseudonyms, such as Pseudonym Taxpayer, Rose and David Septuagenarian, or Hmong I.13
  10. Potentially argumentative pseudonyms, or more broadly ones that are likely to arouse sympathy, such as Jane Endangered and Jane Imperiled, Whistleblower, Victim A, or Navy Seal.14
  11. Famous-name pseudonyms, such as Publius,15 Hester Prynne from The Scarlet Letter, Gertrude Stein, or Marie, Joseph, and Carol Danvers from the Ms. Marvel/Captain Marvel comics.16
  12. Even likely puns, such as Femedeer (doe, a deer, a feme deer).17

There are costs and benefits to each, with some such as “potentially argumentative pseudonyms” raising issues that transcend the issue of pseudonymity into absurdity. Why not call the plaintiff “Victim Sue” and the defendant “Evil Joe”? That would make for some interesting pull quotes for future decisions.

So which work and why? It’s a hard question now and will prove increasingly difficult in the future. But it is an issue that needs to be considered, and best to think it through before it’s a morass of 57 cases captioned “Doe v. Harvard.”

 

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10 thoughts on “Short Take: How Many “Does” Are There?”

  1. phv3773

    Of course, the internet uses numerical suffixes, even as I do here. The common term is ‘dork digits.’ Someone, somewhere, could be in charge of issuing Doe12345, and keep an index of which case they appear in.

    2. Keith

      Part of the reason it’s hard to “keep track” of which cases individual Does are in is that… we don’t know who the individuals are.

      But cases already have number systems for reference.
      John Doe v. Trustees of… is known as 23cv00123 and the opinion can be found at 457 F.3d 1001 or whatever they are up to these days.

      We like the names because they have meaning to us, as humans. But if this particular one loses meaning, there are still other unique identifiers.

      In the case of 23123 v Trustees…, the court said…
      Especially in the age of electronic filing, this seems like a fairly easy one to figure out.

  2. Elpey P.

    There’s always the old porn star name formula: name of first pet plus name of childhood street.
    Although it’s as likely to produce Banjo 28th v. Trustees of Indiana University as it is Max Oak v. Trustees of Indiana University.

  5. Dan

    I think I’d favor the second option–fictitious names unrelated to the parties’ names–but for the near-certainty that they’d overlap with real people and not be nearly as obvious. I’m sure there are real people named John Doe, Jane Roe, etc., but it’s nonetheless obvious those are pseudonyms. But completely random names are much more likely to be the same as those of real people, and much less likely to be obvious, unless the pool consists of names that are pretty far “out there” like, say, Mortimer W. Clanketybritches.

    1. Ken Mackenzie

      One way of avoiding that problem was adopted in Queensland by using, for example, “John Stable (a pseudonym)”. Then, if your real name happens to be John Stable, it’s clearly not about you.

  6. Ken Mackenzie

    Another option, used in Australian Federal Courts, is a unique code allocated by the Court. Three letters and two numbers was the chosen format. For example MZM23 v Minister for Immigration.

    Hard to remember, but at least avoids the duplication problem.

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