Typographic Conventions Misunderstood

"Nom de Guerre": Names in CAPS
(updated Jan. 31, 2005)

Many years ago when printing was in its infancy, there were no established rules for highlighting certain features of text. Since color was not available, capitalization became a means for emphasis. For example, in 1626 Sir Robert Cotton gave a speech in Parliament regarding debasement of coin and his speech was eventually reprinted in 1651. Examination of just the first page of this document published in 1651 shows almost a random pattern for capitalization.

A student of the law may visit a typical law library and possibly find one of the the oldest sets of books common in such libraries: Howell's State Trials, which is an 18th century publication that reprinted historic, old English cases regarding a wide variety of topics. Review of this page of Howell's State Trials shows that even in 1629, the names of cases (their "styles") were capitalized.

When the United States Constitution was ratified and Congress started operating via that constitution, the first laws were printed in newspapers and later archived. By 1845, Congress decided to print the laws it passed in a publication officially known as the United States Statutes at Large. Review of just a few pages from the first volume of this work, Vol. 1, Statutes at Large, demonstrates frequent use of capitalization for many words appearing in print.

The first reporter for the United States Supreme Court was Dallas, who also happened to be the reporter for the Pennsylvania courts. He thus published in the first volumes of the U.S. Supreme Court reporter decisions of Pennsylvania courts. Subsequent reporters like West Publishing simply recopied Dallas's reports when they published theirs. Here in this file, U.S. Supreme Court, you may review sample pages of the first volume of West's Supreme Court reporter. Please notice that the styles of cases and many other items were capitalized. See also similar items for Alabama.

As seen above, court cases were printed for more than a hundred years before the 1780s with capitalized styles. Below, please find cases for the years indicated where styles of cases were capitalized:

1787 1821 1821 1822 1833 1835 1842 1842 1844 1846 1846
1846 1857 1857 1858 1862 1862 1862 1863 1864 1870 1870

The items appearing above were obtained from some historical research materials found in my office and thus may not be of the finest reproduction quality (some of these copies are themselves 20 years old). Nonetheless, it is obvious that for hundreds of years, styles of cases and other legal materials were frequently capitalized for purposes of emphasis. The custom of capitalized styles of cases continues even today.

In recent years, there has been promoted an argument that capitalized styles of cases means something sinister. Some advocates of this argument identify the source for this contention: a book written by a man named Berkhimer. Allegedly in this book, the author states that a "nom de guerre" is a "war name" symbolized by a given name being written in capital letters. I have tried to find this passage in this book but have been unable to do so. The argument contends that because of events in 1933, we have been made "enemies" and government indicates our status as enemies by the nom de guerre. If this is true, then why have the styles of the decisions of the United States Supreme Court since its establishment been in caps? This argument has gotten lots of people in trouble. For example, a number of people such as Al Thompson and Keith Anderson have defended themselves against criminal charges with this argument, but have been thrown into jail nonetheless. I have not even seen a decent brief on this issue which was predicated upon cases you can find in an ordinary law library.

In any event, several courts have rejected this argument:

1. Jaeger v. Dubuque County, 880 F.Supp. 640 (N.D.Iowa 1995)
2. United States v. Heard, 952 F.Supp. 329 (N.D.W.Va. 1996)
3. Boyce v. C.I.R., 72 T.C.M. ¶ 1996-439 ("an objection to the spelling of petitioners' names in capital letters because they are not 'fictitious entities'" was rejected)
4. United States v. Washington, 947 F.Supp. 87, 92 (S.D.N.Y. 1996)("Finally, the defendant contends that the Indictment must be dismissed because 'Kurt Washington,' spelled out in capital letters, is a fictitious name used by the Government to tax him improperly as a business, and that the correct spelling and presentation of his name is 'Kurt Washington.' This contention is baseless")
5. United States v. Klimek, 952 F.Supp. 1100 (E.D.Pa. 1997)
6. In re Gdowik, 228 B.R. 481, 482 (S.D.Fla. 1997)(claim that "the use of his name JOHN E GDOWIK is an 'illegal misnomer' and use of said name violates the right to his lawful status" was rejected)
7. Russell v. United States, 969 F.Supp. 24, 25 (W.D. Mich. 1997)("Petitioner * * * claims because his name is in all capital letters on the summons, he is not subject to the summons"; this argument held frivolous)
8. United States v. Lindbloom, 97-2 U.S.T.C. ¶ 50650 (W.D. Wash. 1997)("In this submission, Mr. Lindbloom states that he and his wife are not proper defendants to this action because their names are not spelled with all capital letters as indicated in the civil caption." The CAPS argument and the "refused for fraud" contention were rejected)
9. Rosenheck & Co., Inc. v. United States, 79 A.F.T.R.2d (RIA) 2715 (N.D. Ok. 1997)("Kostich has made the disingenuous argument the IRS documents at issue here fail to properly identify him as the taxpayer. Defendant Kostich contends his ‘Christian name' is Walter Edward, Kostich, Junior and since the IRS documents do not contain his ‘Christian name,' he is not the person named in the Notice of Levy. The Court expressly finds Defendant WALTER EDWARD KOSTICH JR. is the person identified in the Notice of Levy, irrespective of the commas, capitalization of letters, or other alleged irregularities Kostich identifies as improper. Similarly, the Court's finding applies to the filed pleadings in this matter")
10. United States v. Weatherley, 12 F.Supp.2d 469 (E.D.Pa. 1998)
11. United States v. Frech, 149 F.3d 1192 (10th Cir. 1998)("Defendants' assertion that the capitalization of their names in court documents constitutes constructive fraud, thereby depriving the district court of jurisdiction and venue, is without any basis in law or fact").

Jon Roland of The Constitution Society web site wrote the following about this argument:

Typographic Conventions in Law

Jon Roland, Constitution Society

One of the persistent myths among political dissidents is that such usages as initial or complete capitalization of names indicates different legal entities or a different legal status for the entity. They see a person's name sometimes written in all caps, and sometimes written only in initial caps, and attribute a sinister intent to this difference. They also attach special meanings to the ways words may be capitalized or abbreviated in founding documents, such as constitutions or the early writings of the Founders.

Such people seem to resist all efforts to explain that such conventions have no legal significance whatsoever, that they are just ways to emphasize certain kinds of type, to make it easier for the reader to scan the documents quickly and organize the contents in his mind.

They also seem to go to enormous lengths looking for dictionaries or court rules to tell them what such typography means, without ever seeming to find what they are looking for, other than the actual usages themselves in important court cases.

Well, there is an authoritative reference, the one used by courts and lawyers all over the world. It is The Bluebook: A Uniform System of Citation, compiled by the editors of the Columbia Law Review, the Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal, 16th ed. 1996. Copies can be obtained from any law book store or by writing The Harvard Law Review Association, Gannett House, 1511 Massachusetts Av., Cambridge, MA 02138.

To explain how typographic conventions originated, and what they mean, I am reminded of the story of the first grader whose teacher became alarmed by the crayon drawings of one of her students. She called in the school counselor and she became alarmed, so she called in a child psychologist, who also became alarmed in turn. Fearing for the mental health of the child, they called in her parents.

The parents, now themselves concerned about their child, arrived at the meeting. "What happened?", the father said. The school staff persons showed his daughter's art work to him and to his wife. The father looked the drawings over, and said, "Look pretty good to me. I couldn't do that well at that age."

"But the colors!" the teacher said. "She does everything in black, grey, and brown!" said the counselor. "It seems morbid" said the psychologist.

So the father said, "Why don't we ask my daughter?" The school staff looked aghast at this audacious suggestion, but, not having any better ideas, they asked the little girl to come in.

She saw her parents, and the school staffers, all gathered around her art work, looking concerned, and became a bit concerned herself. But her father knew what to say. "Hon, your teachers want to know why you are drawing everything in black, grey, and brown."

"I gave most of my crayons to the other kids when they used theirs up", she said. "Black, grey, and brown are the only colors I have left."

Lawyers continued to hand write legal documents long after typewriters were invented. As a profession, they tend to be the last to adopt new technology. When things were hand written, they had only a few ways to highlight words. They could use block printed characters instead of cursive, or they could underline. Typesetters converted the block printed characters to all caps, sometimes with different font sizes, and the underlined words to italics.

As lawyers and legal staff began to use typewriters, they could not conveniently underline, and they didn't have italic fonts, so putting words in all caps was about the only way they had to show emphasis. Judges began rewarding lawyers (or so they thought) with better decisions if they put some words, like the names of parties, in all caps, to make it easier for overworked judges to quickly scan through many pages of pleadings and make sense of them.

Then computers came along. People started using them to produce legal documents. But a lot of them only had capital letters on their printers, or did not distinguish between upper and lower case. Programs in COBOL are examples of this. It was also found that it was easier to read words printed in all caps on forms, and to distinguish the newly-printed words from the pre-printed words on the forms.

In the meantime, there were advances in typesetting typography. People became able to print special symbols, bold face, different fonts and sizes, superscripts, underlined, and colors. And with that came demands for using differences in typography to highlight words in legal documents, including treatises, law review articles, briefs, etc.

Now we have personal computers and laser printers that can do anything the typesetter can do, and legal workers are now under pressure to produce nicely composed legal documents according to the same conventions that typesetters are asked to use.

This explosion of choices could have led to confusion, so the various courts have established rules for how they want legal documents prepared, and these rules are matched by similar but sometimes different rules of the major law review editors.

Basically, they have settled on three font styles: upper-and-lower case Roman, Italics, and Roman all-caps with larger point size for initials. Of course, if these are saved as ASCII text files, the Italics are lost, and the all-caps only show up as a single point size. Sometimes, to show Italics, as a legacy of underscoring, the words to be italicized are surrounded by underscore characters, as we do in the text above in the text version of this article.

The Bluebook calls for different typographics for the same kinds of things in different places. For example, a case cite like Marbury v. Madison would be italicized in the body of a law review article, but not in a footnote. Why? Who knows. It doesn't have to make sense. It's what they do. If you submit it using different conventions, the editors will change it to their journal's conventions.

The important thing to remember, however, is that there is no legal significance to the typography of a name, other than how well it distinguishes one object from others with which it might be confused. It is the object that matters. A misspelling is a "scrivener's error". Doesn't changed anything. Just needs to be corrected. Caps, complete or initial, don't mean anything. Just whatever the writer thought would aid the reader to get through the document quickly and with a minimum of confusion.

The nom de guerre position is one rabidly advocated by Wrong Way Law. It is all based on hype and emotions; the speakers who advocate this argument know how to push the emotional "hot buttons" at patriot pep rallies. I have reviewed the "best" briefs regarding this issue and they are all trash. Yet I continue to see people call themselves "John, of smith," "Jack: Smith," etc., and I just simply conclude that such parties have attended a Wrong Way Law seminar and have accepted a pack of lies. Further, it is remarkable that all the people who believe this idea have never checked it out; they just accept it because some patriot guru claimed it was correct.

http://home.hiwaay.net/~becraft/NamesInCaps.htm