I am off for the rest of the week, to visit a place I visited in the first month of this blog's life. I'll be back Sunday, and when I'm back I'll be somewhere else.

Judge Easterbrook issued this opinion generally siding with a Jane Doe whose legal claims under the federal wiretapping act had been too hastily dismissed below. (Her boyfriend allegedly videotaped them having sex and then spread the tape around. She was kicked out of court for failing to plead a specific theory of how this violated the wiretap act, but Easterbrook reminded the lower courts that one pleads grievances, not facts, not law.)

However, Easterbrook also scolded the lower court for too-hastily letting Ms. Doe proceed anonymously rather than under her real name, and owing to some administrative snafu, her real name was (and still is, as of 10:13 A.M.) online.

Professor Lior Strahilevitz is on the case, pointing out that being able to proceed privacy is part of what makes invasion of privacy suits sustainable. (Of course, the federal claim in this case is not about privacy but about wiretapping, but in order for it to stick there will need to be another valid claim appended to it.) This is even more so in the modern day where Easterbrook opinions are linked and blogged. If Doe were proceeding under her real name, I would be using it in this post, and it would then turn up when somebody googled her, and so on.

That said, I am not so sure that Easterbrook is wrong. The Seventh Circuit does have a string of case law that disfavors the use of pseudonyms. And as Judge Posner put it in one of those earlier cases, "Rule 10(a) of the Federal Rules of Civil Procedure, in providing that the complaint shall give the names of all the parties to the suit (and our plaintiff's name is not 'John Doe'), instantiates the principle that judicial proceedings, civil as well as criminal, are to be conducted in public." (Doe v. Blue Cross, 112 f. 3d 869 (not available online)). There are other cases in a similar vein. Doe v. Sherriff of DuPage County, 128 F.3d 586, ("We hope we will not see too many more John or Jane Does in the future.") And Judge Easterbrook is bound by that string.

Moreover, Easterbrook only forced the district judge to make sure to apply the current test (which is whether harms from concealment are outweighed by the potential harm to the plaintiff from revelation) rather than simply hand out monikers automatically.

I do not see what is so bad about this. Yes, on the margin some people are surely deterred from going forward. But there is a value to knowledge, too, especially when rights are otherwise uncertain. And it's not as if this reminder from Easterbrook necessarily guts invasion of privacy torts, as Professor Strahilevitz fears-- presumably a district judge is licensed to take into account in the balancing test whether disclosure and the underlying cause of action are basically inconsistent.

But the federal claim here wasn't an invasion of privacy claim, it was a wiretapping claim, and I certainly do not think there should be a general rule that wiretapped plaintiffs can claim an anonymity that the rest of us cannot when litigating. At any rate, it seems unfair to blame the opinion on this panel rather than on Rule 10, and the previous Doe cases, which the panel is pretty much supposed to follow. (It is perfectly fair to blame somebody-- but I don't know if it's the panel, an administrator, or Doe's lawyers-- for the fact that her real name is posted on the website.)

My grandmother used to do her Christmas shopping by taking the train from LaPorte to Chicago and going to Marshall Field's. Completely unaware of this history, I relied on Field's for my Chistmas shopping my freshman year of college as well. But now Field's is no more to be.

I would care, except that several years ago, Field's (and Macy's) stopped carrying Woodward wrinkle-free button-down dress shirts, which were my favorite, and I am still bitter.