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Tennessee Law Review

Document Type

Article

Abstract

Being publicly shamed is, for some, a fate worse than death. This article addresses a tension at the heart of the practice of "popular public shaming" as a social regulatory mechanism. While shaming can be an effective and inexpensive tool to reflect and impart current collective values, it also can deter victims of wrongs from vindicating their rights in court, thereby inhibiting the pursuit of justice. Some legislatures and courts, including the United States Supreme Court, have sought to address this problem by permitting certain rightsholders to bring lawsuits pseudonymously. However, as this article shows, the standards and procedures in place for doing so are ad hoc, inefficient, and, ultimately, ineffective. Furthermore, current legislative opposition to plaintiffs' use of pseudonyms, on the grounds that plaintiff anonymity undermines longstanding ideals of judicial openness, is misguided. As this article demonstrates, the normative and historical foundations of the concern for judicial openness in fact favor a limited option for plaintiffs to bring lawsuits without revealing their identities. When rightsholders demonstrate a likelihood of "public shaming" that reasonably will deter them from bringing a lawsuit, I propose that they should be presumptively permitted to proceed under a pseudonym. The burden then should shift to the defendant-and to the public-to show why the pseudonym should not be allowed. This article shows how adopting such a rule would address the risk that public shaming poses to access to justice, while simultaneously protecting the legitimate interests of defendants' and society's interest in monitoring the judicial process.

Publication Date

2017

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