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COVID-19 lockdowns and school closures that don’t account for local conditions have served as a useful reminder that universal one-size-fits-all policies are generally not the best solutions. Now the Biden administration is applying similar one-size-fits-all logic to his universal pre-K plan.

After a year and a half of cyclical government-mandated school and daycare closures, many parents are desperate for relief. They may think any help is better than no help, but President Joe Biden is proposing an inflexible model that will drive up childcare costs and result in less variety among preschools.

Under the Biden plan, states will only be able to give federal funds to preschool programs that offer at least 1,020 hours of instruction annually. That is more hours than most states require for children in K-12 schools. In my home state of Pennsylvania, 900 hours is considered full-time for elementary school; for high school, it’s 990 hours. Oregon, Massachusetts, Idaho, New Hampshire, Utah, and Virginia similarly top out at 990 hours. Some states are even lower. Requiring more hours annually than high schools must offer is a ridiculous mandate to put on a pre-K program. Preschool is meant to be a bridge toward full-time school. Parents who don’t want a full-time preschool program are not served well by Biden’s plan.

Biden’s universal pre-K plan will drive up teaching costs since it mandates that pay for preschool teachers be equivalent to elementary school teachers’ salaries, provided they have similar credentials and experience. Elementary school salaries vary across districts. Will private providers have to match their salary scale to the local union-dominated public school’s salary scale? This is essentially putting prevailing wage rules on preschool programs, and will unnecessarily drive up costs.

The “free” nature of the Biden plan will also increase costs by increasing demand among parents who otherwise wouldn’t be interested in full-time preschool. If their choices are to pay for a program with fewer hours or get one with more hours at no cost, many will choose the “free” one even if they would have ordinarily preferred another option. We already see this play out in K-12 schools; polls show only 40 percent of parents would choose their assigned district school if they could afford other options, but 80 percent of students attend traditional public schools.

Any state that signs up for the Biden plan needs to realize state taxpayers will be responsible for these new programs when the federal money runs out. The federal reimbursement for the universal preschool program drops to 64 percent in 2027—and then to zero soon after. So the Biden plan will create a new bureaucracy, increase preschool costs, provide partial funding for a few years, and then state taxpayers will be facing massive new costs as far as the eye can see. 

Not only will state taxpayers be left with the tab, but parents will also be left with programs that aren’t flexible enough to meet their needs. And to what end? New research from Nobel Prize-winning economist James Heckman reinforces the case for targeted, rather than universal, social service programs. “More advantaged families are better able to access, utilize, and influence universally available programs,” Heckman and co-author Rasmus Landersø wrote in a March 2020 working paper. These advantages don’t go away with universal provision, so these programs may worsen inequality. Heckman finds targeted programs to be more effective at reducing inequality.

But the U.S. government doesn’t have the best track record with targeted programs. Consider the Head Start preschool program, which is expected to be the model for Biden’s plan according to Tommy Sheridan, deputy director of the National Head Start Association. The most comprehensive Head Start study, released by the U.S. Department of Health & Human Services in 2012, found the program had little or no impact on student outcomes by 3rd grade—despite costing more than $7 billion per year at the time ($7,900 per participant).

No doubt “free” preschool sounds appealing to parents with young children, but they should be careful what they wish for. Throughout the country, there are contentious school board meetings and political races showing how impossible it is to satisfy everyone with a universal program.

On the bright side, K-12 education choice is flourishing in the face of this parental frustration. So far this year, 18 states have enacted new education choice programs or expanded existing ones. Many of these have been educational savings accounts (ESAs), which are the most flexible form of education choice, allowing parents to use taxpayer funds for various educational needs like tutoring, tuition, and services for students with special needs. It would be a tragic irony if preschool became mired in bureaucratic mandates and federal involvement right as parents are gaining access to more K-12 options.

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I’ve just finished up a draft of this article; you can read the PDF, but here’s an excerpt from the Introduction:

For many litigants these days, one of the most important questions is: Can I keep my name, and its connection to the case and its facts, off the Internet? In the past, of course, some litigants wanted to keep their names out of the newspapers, and some still do. But the Internet, and the availability of court records on the Internet, has sharply magnified this concern. Before, a typical employment lawsuit, for instance, would rarely make the papers. But now, Googling a person’s name will often find many of the cases in which they’ve participated, even if those cases haven’t made “the news.”[8]

And many litigants would love pseudonymity. That’s particularly obvious for defendants, most of whom are being sued over alleged misconduct. Say someone sues you for alleged embezzlement, fraud, or sexual assault, or even malpractice or a breach of contract. Wouldn’t you rather that your friends, neighbors, and prospective clients and other business partners not know about it? And while some defendants simply want to hide their misdeeds, others are innocent, and don’t want to be linked to incorrect accusations—whether temporarily, pending the trial and verdict, or perhaps forever.[9]

Many plaintiffs would want pseudonymity, too; just to offer a few examples,

• Sexual assault plaintiffs may not want to be publicly identified.
• Libel plaintiffs may not want to further publicize the allegedly libelous allegations over which they are suing. [10]
• Employment law plaintiffs who were fired for alleged misconduct but are claiming that this was a pretext may not want a Google search for their names to lead to those allegations (however forcefully denied).
• People suing over politically controversial behavior (e.g., an employee fired for allegedly racist or unpatriotic statements[11]) or using legal theories that some might condemn[12] may not want to be publicly shamed or humiliated.
• Even ordinary employment law or housing law plaintiffs may not want future employers or landlords to reject them as dangerously litigious.[13]

For good reason, most lawsuits are nonetheless litigated in the parties’ own names. That is obviously true of adult criminal cases, even though nearly all criminal defendants would much prefer pseudonymity.[14] And it’s true of civil cases: Our legal system generally calls for public proceedings and publicly filed documents; and the names of the parties are viewed as part of the information that needs to be kept public.[15]

Such openness is viewed as important for letting the public (usually through the media) supervise what happens in courtrooms that are publicly funded and rely on publicly-supported coercive power. Many major stories and some scandals have been broken in part because of the availability of civil court records.[16] And even for the many cases that go largely unnoticed, the possibility of public review helps deter shenanigans.

Yet some litigants are indeed allowed to litigate pseudonymously. Some classes of such litigants are fairly clearly and reasonably defined: Minors (either in juvenile criminal cases or in civil lawsuits) are a classic example.[17] So are litigants who are mounting purely legal challenges to statutes, where their identities are tangential,[18] though such litigants also have to show something potentially embarrassing or private that the litigation would reveal (think Roe v. Wade).

But much of the law is unsettled: It is unclear, for instance, whether plaintiffs alleging sexual assault can indeed proceed pseudonymously.[19] It is unclear whether pseudonymity is more justified in lawsuits against governmental defendants or less justified.[20] It is especially unclear when defendants could seek pseudonymity just to prevent possible damage to reputation stemming from the allegations at the heart of the lawsuit (allegations that defendants claim are false); likewise for plaintiffs who are suing over allegedly false allegations, for instance in a libel lawsuit.[21]

And many of the distinctions that the cases do appear to implicitly draw are hard to explain. Imagine, for instance, that Arnold is an adult university student accused of sexually assaulting his classmate Veronica:

1. The criminal prosecution would almost certainly be People v. Arnold, not People v. Doe, notwithstanding the harm to Arnold’s reputation (a harm that would be present even if he’s ultimately acquitted or the charges are dropped).
2. The civil lawsuit would often be Veronica v. Arnold.
3. But some courts would allow it to be Doe v. Arnold, to protect Veronica’s privacy.[22]
4. Only a few courts would allow it to be Doe v. Roe.[23] Those courts appear to accept the theory that, just as it can be unjustly humiliating for many victims to be publicly identified as such (assuming they are telling the truth that they were indeed victimized), so it can be unjustly humiliating for many of the accused to be publicly identified as such (assuming they are telling the truth that they were not guilty)[24]—but most courts do not.[25]
5. If Arnold sues Veronica for libel, claiming Veronica’s accusations were lies, most courts would require it to be Arnold v. Veronica or perhaps Arnold v. Roe,[26] but not Doe v. Roe.[27]
6. But many courts routinely allow the pseudonymous Doe v. University of Northern South Dakota, a lawsuit in which Arnold is claiming that the university acted improperly in expelling him for the alleged misconduct—even though there, as in the libel case, Arnold wants pseudonymity to protect his reputation.[28]

Why the differences?

In this Article, I’ll try to analyze some of these tensions. In particular, I’ll deal with three cross-cutting issues that often arise in these cases:

[1.] Pseudonymity creep: Simply pseudonymizing a party seems easy enough, and seems like only a modest restriction on public access. But of course other information in the case can lead interested researchers to the party’s identity. Even if a minor’s name is abbreviated L.V., if the case is Volokh on behalf of L.V. v. Los Angeles Unified School Dist., it might not be hard for people to identify L.V. based on her representative’s (likely her parent’s) name.[29] Likewise, if a Complaint filed by John Doe in a libel case quotes the alleged libel, a quick Google search for the libel could identify its target. If an alleged sexual assault victim sues the attacker, who used to be the victim’s spouse or lover, people who know the attacker may easily deduce the identity of the victim.[30]

To make pseudonymity really effective, then, more needs to be done than just pseudonymizing one particular party—such as sealing important material outright, or pseudonymizing the other party as well. But then pseudonymity will also interfere more with public right of access, and may further undermine the interests of the opposing parties.[31]

[2.] The ubiquity of the desire for privacy: I noted above that very many litigants, plaintiffs and defendants, would prefer to keep their names out of the court record and therefore off Google and out of the newspapers. Courts have observed this and often cite this as a reason to reject pseudonymity—if we let this litigant be pseudonymous, we’d in fairness have lot all these other litigants do the same, and then we’d have a very different and much less transparent system of procedure.[32]

[3.] The puzzle of dealing with reputational damage: In particular, a vast range of cases involves material risk of reputational damage to one or both parties—in particular, damage to the ability to earn a living. Courts often remark that mere risk of reputational damage (including unjust reputational damage, for instance if the accusations against a defendant ultimately prove to be unfounded) is not enough to justify pseudonymity. But not all cases so hold, in part because the reputational concerns can seem so serious and salient. And the cases that allow pseudonymity to protect privacy rather than to protect reputation sometimes boil down to risk of reputational damage, too (for instance, if a plaintiff seeks pseudonymity to conceal information about a mental illness).

In what follows, I seek to (a) lay out the general legal rules, as reflected in court decisions (which I hope will be useful to judges and lawyers as well as academics) and (b) lay out the main policy arguments cutting in favor of and against pseudonymity. I may also offer (c) some normative suggestions about what should be done. But in general I’m not at all sure what the right answer is on most of those cases. Rather, “I don’t have any solution, but I certainly admire the problem,”[33] and I hope to persuade you to admire the problem, too.

 

[1] See infra Part II.H.

[2] See infra Part I.E.3.

[3] See, e.g., Flatley v. Mauro, 139 P.3d 2 (Cal. 2006).

[4] And a related question: When a system is generally secret, what provisions are there for public access? This arises especially when a public procedural system seeks to make a decision that turns on a past judgment of a private procedural system—for instance, when people seek the results of juvenile court records for use in adult criminal proceedings (or in civil proceedings), or when an action is brought in the civil justice system to enforce the results of an arbitration. But that is a story for another day.

[5] See, e.g., Cal. R. Ct. 2.550–.551. This article is mostly about federal courts, because reviewing just what they do is daunting enough; but I occasionally cite relevant state cases, since many state courts seem to take an approach similar to that of the federal courts. See, e.g., Doe v. Empire Ent., LLC, No. A16-1283, 2017 WL 1832414, *4 (Minn. Ct. App. May 8, 2017).

[6] Rules 5.2 and 10(a) do provide that minors are to be pseudo­nymized and adults are not, but federal courts have viewed the nonpseudonymity of adult parties as just a presumption that can be rebutted—and the Rules say nothing about the criteria for rebutting it.

[7] For some important articles on the subject over the last 40 years, see David S. Ardia, Court Transparency and the First Amendment, 38 Cardozo L. Rev. 835 (2017); Benjamin P. Edwards, When Fear Rules in Law’s Place: Pseudonymous Litigation As a Response to Systematic Intimidation, 20 Va. J. Soc. Pol’y & L. 437 (2013); Lior J. Strahilevitz, Pseudonymous Litigation, 77 U. Chi. L. Rev. 1239 (2010); Donald P. Balla, John Doe Is Alive and Well: Designing Pseudonym Use in American Courts, 63 Ark. L. Rev. 691 (2010); 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); Jayne S. Ressler, Privacy, Plaintiffs, and Pseudonyms: The Anonymous Doe Plaintiff in the Information Age, 53 U. Kan. L. Rev. 195 (2004); Jayne S. Ressler, #WorstPlaintiffEver: Popular Public Shaming and Pseudonymous Plaintiffs, 84 Tenn. L. Rev. 779 (2017); Joan Steinman, Public Trial, Pseudonymous Parties: When Should Litigants Be Permitted to Keep Their Identities Confidential?, 37 Hastings L. J. 1 (1985).

[8] “Over a century ago, Samuel Warren and Louis Brandeis . . . wrote that ‘modern enterprise and invention have, through invasions upon [an individual’s] privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.’ The modern invention of today includes access to court files by those surfing the Internet.” EW v. New York Blood Ctr., 213 F.R.D. 108, 112–13 (E.D.N.Y. 2003); see also Gen. Orders of Div. III, Wash. Cts., In re the Use of Initials or Pseudonyms for Child Victims or Child Witnesses, https://‌www.courts.wa.gov/‌appellate_trial_courts/‌?fa=atc.genorders_orddisp&ordnumber=2012_001&div=III (ordering that all references to child witnesses or victims use “initials or pseudonyms,” “In light of the increased availability of court documents through electronic sources”).

[9] I am not discussing here the separate question of defendants who are unknown to the plaintiffs (e.g., anonymous online libelers), and who are anonymous because of that.

[10] See infra Part II.G.1.e.

[11] Cf. Eugene Volokh, Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Tex. Rev. of L. & Pol. 295 (2012).

[12] See, e.g., Ressler, #WorstPlaintiffEver, supra note 7.

[13] “At bottom, Plaintiff wants what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it. But while that desire is understandable, our system of dispute resolution does not allow it.” Doe v. Fedcap Rehab. Servs., Inc., No. 17-CV-8220 (JPO), 2018 WL 2021588, *3 (S.D.N.Y. Apr. 27, 2018).

[14] Pseudonymous prosecutions of adults are extremely rare, though they do exist. United States v. Doe, 488 F.3d 1154, 1156 n.1 (9th Cir. 2007) (keeping case pseudonymous because the district court had allowed pseudonymity, but not describing the reasons for that or whether they were sufficient); People v. P.V., 64 Misc. 3d 344 (2019) (pseudonymizing published opinion discussing a transgender prostitute’s criminal conviction, and concluding that defendant was a victim of sex trafficking). See also United States v. Pilcher, 950 F.3d 39, 45 (2d Cir. 2020) (concluding that pseudonymity is generally unavailable as to habeas petitions as well).

[15] See infra Part I.C.1.

[16] The Boston Globe’s investigation of the Catholic Church’s coverup of sexual abuse by priests, dramatized in the film Spotlight, is just one especially noted example. See Michael Rezendes, Church Allowed Abuse by Priest for Years, Boston Globe, Jan. 6, 2002.

[17] See infra Part II.E.

[18] See infra Part I.D.

[19] See infra Part II.F.4.

[20] See infra Part I.G.

[21] See infra Part II.G.

[22] See infra Part II.F.4.

[23] See infra Part I.E.4.

[24] Of course, if the accused is guilty, and is lying about the defense, then it may be only fair that the public learns of the guilt. But equally, if the accuser is lying about the claim, then it may be only fair that the public learns about that.

[25] Of course, as a general matter Arnold would need to know Veronica’s identity; I focus here on pseudonymity that shields the parties’ identity from the general public, and not from other parties or the court. See, e.g., United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995) (“We are not aware of any case in which a plaintiff was allowed to sue a defendant and still remain anonymous to that defendant. Such proceedings would, as Microsoft argues, seriously implicate due process.”); In re Sealed Case, 971 F.3d 324, 326 n.1 (D.C. Cir. 2020).

[26] See, e.g., A.B. v. C.D., No. 217CV5840DRHAYS, 2018 WL 1935999 (E.D.N.Y. Apr. 24, 2018); Painter v. Doe, No. 3:15-CV-369-MOC-DCK, 2016 WL 3766466 (W.D.N.C. July 13, 2016).

[27] See, e.g., Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB, 2020 WL 6152174, *3 (E.D.N.Y. Oct. 14, 2020). But see Doe v. Doe 1, No. 1:16-cv-07359 (N.D. Ill. Aug. 24, 2016).

[28] See infra Part II.G.

[29] See infra Part II.E.1.

[30] See infra note 206.

[31] See infra Part I.C.3.

[32] See infra Part I.C.4.

[33] Ashleigh Brilliant, I May Not be Totally Perfect, But Parts of Me are Excellent, and Other Brilliant Thoughts (1979).

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In 2008, I took Jonathan Mitchell’s seminar on habeas corpus at George Mason. It was, without question, the hardest class of my law school career. The questions he posed in class were devastating. He had such a commanding understanding of every nuance of AEDPA. No matter which way I turned, Mitchell would flip the question. Indeed, he would anticipate every twist and turn to foreclose possible answers to his hypotheticals. At one point, the only answer I could come up with was “well, the statute is titled the “effective death penalty act,” so it should be construed to make executions more effective. Mitchell smiled, and then said that wasn’t a real rule of law.

I had déjà vu during the S.B. 8 arguments yesterday. Several justices were intent on finding some way, any way to permit this suit to go forward. They conjured up creative and cute approaches that would modify longstanding doctrine. Indeed, Justice Breyer seemed most sensitive to the risks of permitting the suits. But at every turn, they were stymied by Jonathan Mitchell’s brainchild. Yesterday, the Justices were in the same spot as this hapless 3L. He was ahead of them at every turn.

At one point, Justice Kagan expressed her frustration. She said that “some geniuses came up with a way to evade the commands” of Ex Parte Young. She was obviously referring to Mitchell. Justice Kavanaugh added, “there’s a loophole that’s been exploited here.” Again, Mitchell.

Of course, the difference between a 3L and a Supreme Court justice is that a 3L cannot change the law. Us mere mortals are stuck with governing precedent. But judicial creativity, bolstered by judicial supremacy, has no limits.

We are living in Jonathan Mitchell’s world. And the judicial supremacists just can’t stand it.

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The Biden administration has reached a deal with the European Union to withdraw tariffs imposed by President Donald Trump on European-made steel. Unfortunately, the agreement likely won’t translate into lower costs for American manufacturers and consumers.

That’s because the Biden administration is replacing Trump’s tariffs with a new form of protectionism that will continue to artificially inflate the cost of steel imported from Europe. Instead of charging 25 percent tariffs on all steel imports, as Trump did, Biden’s deal includes a so-called “tariff-rate quota” that will allow 3.3 million metric tons of steel to be imported annually without tariffs. Once that threshold is met, the 25 percent tariffs will apply to subsequent imports. For reference, the U.S. imported nearly 5 million metric tons of steel from Europe in 2017—the last full year before Trump’s tariffs caused imports to fall sharply.

While the lifting of Trump’s tariffs is good news for some steel-consuming businesses in the United States that are struggling with high prices and supply shortages, “it is disappointing that the agreement will not completely terminate these unnecessary trade restrictions on our allies,” the Coalition of American Metal Manufacturers and Users, an industry group, said in a statement. “The U.S. domestic steel sector does not need protection from competition and the U.S. should immediately begin negotiations to lift these damaging tariffs on our other close allies and trading partners.”

Steel manufacturers, however, voiced their support for the continued protectionism afforded by the Biden administration’s new agreement. Kevin Dempsey, president of the American Iron and Steel Institute, which represents steelmakers, hailed the deal’s tariff-rate quotas as a “crucial” policy meant to “prevent another steel import surge.” Similarly, The New York Times reported that “metal unions in the United States praised the deal, which they said would limit European exports to historically low levels.”

But, of course, a surge of steel imports is exactly what America could use right now. American manufacturers are paying more than $1,300 more per ton of hot-rolled steel than their competitors in China this month, according to data aggregated by Steel Benchmarker, a trade publication. By limiting the supply of imported steel, the Trump/Biden trade policies have combined to limit supply and drive up prices—a narrow victory for domestic steelmakers and unions lobbying for greater protectionism, but a loss for downstream industries that must buy steel for various purposes.

Meanwhile, the deal with the E.U. does nothing to ease Trump’s tariffs on imports from other major American trading partners, including Great Britain, Japan, and South Korea. That means it is unlikely, for now at least, that imports from other sources will help ease the high prices and supply shortages plaguing American manufacturing.

There are other reasons to be wary of Biden’s deal with the E.U., which includes some provisions seemingly unrelated to the tariffs Trump initially imposed via Section 232 of the Trade Expansion Act of 1962. Under that vague and powerful law, the president is allowed to unilaterally impose tariffs for “national security” purposes. Biden is invoking the same law to impose his new tariff-rate quotes on steel imported from the E.U., but the agreement suggests that the current administration is looking for novel ways to stretch the already warped definition of “national security” when it comes to trade policy.

For example, the White House is calling the new agreement “the world’s first carbon-based” trade deal, an indicator that it sees trade policy as one facet of its overall climate change policy. The Sierra Club, an environmental group that you might not expect to have much to say about steel tariffs, praised the White House for “pursuing a new, climate-focused agreement” on trans-Atlantic trade.

“While addressing the carbon footprint of the steel and aluminum industries may be a legitimate federal government objective, it has nothing to do with the rationale laid out for the imposition of these tariffs,” write Scott Lincicome and Inu Manak, trade policy experts at the Cato Institute. “These tariffs should not be used as leverage to compel our allies to agree to unrelated U.S. interests, and trying to shift the Section 232 tariffs’ focus from a dubious national security threat to climate change is wholly inconsistent with the statute.”

Sen. Pat Toomey (R–Penn.), one of the few members of Congress who tried unsuccessfully to reform Section 232 in light of Trump’s abuses of the law, said in a statement that “using Section 232 tariffs as negotiating leverage to enact concessions on climate change is inappropriate.”

But since Congress doesn’t seem interested in doing much of anything to limit presidential powers under Section 232, what we’re left with is a law that allows presidents to impose, revamp, and leverage tariffs as tools of foreign policy. Regardless of whether they use that power in a misguided attempt to punish foreign nations (as Trump did) or in a misguided attempt to leverage international agreements on climate policy (as Biden appears to be doing), it is ultimately American consumers and businesses that pay the price.

The only real winners to emerge in this new agreement are the industries that suffered collateral damage as a result of Trump’s trade war with Europe. As part of the new deal, the E.U. will end retaliatory tariffs on American-made items like whiskey and motorcycles.

American whiskey exports to the E.U. had fallen by about 37 percent since the retaliatory tariffs had been imposed, according to the Distilled Spirits Council of the United States (DISCUS). “Cheers to the Biden administration for their dogged determination to reset trade relations with the E.U. and bring a stop to the needless damage being done to U.S. businesses caught up in this trade war,” Chris Swonger, CEO of DISCUS, said in a statement. “The end of this long tariff nightmare is in sight for U.S. distillers, who have struggled with the weight of the tariffs and the pandemic.”

That relief is surely welcome. But the Biden administration’s agreement with the E.U. suggests that the spirit of Trump’s steel protectionism is alive and well—and that the power of the American presidency over the free exchange of goods over American borders is only continuing to grow.

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