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March 5, 2013

"Fearing Deluge of Litigation, Supreme Court Works the Floodgates"

The title of this post is the headline of this fascinating new "Sidebar" column by Adam Liptak in today's New York Times.  Here are excerpts:

February was flood season at the Supreme Court.  On Feb. 20 alone, three justices used flooding as a metaphor in talking about the consequences of the court’s rulings.  Justice Samuel A. Alito Jr. wrote that allowing some lawsuits from prisoners would not “prompt an unmanageable flood of litigation.”  Justice Antonin Scalia countered that there was indeed a good reason to worry about “a flood of litigation.”  Justice Stephen G. Breyer, in a second decision that day, said allowing the correction of plainly erroneous rulings late in the game “will not open any ‘plain error’ floodgates.”

Lawyers who argued before the court were using the same terms.  On Feb. 27, one assured the justices that “we haven’t seen the floodgates opened” after a lower court allowed some kinds of class actions. The week before, another lawyer said that ruling against his position “would unleash a flood of suits by prisoners.”  A lawyer on the other side responded: “If adopting a broader interpretation here would open the floodgates, the floodgates are already open, and they have been for 40 years in most of the country.  And we haven’t seen a flood.”

In real life, floods are bad.  But the metaphor of a flood in the context of litigation obscures more than it illuminates.  If a legal theory is sound, is it a problem if it produces too much justice?

Marin K. Levy, a law professor at Duke University, has been tracking the rise of all of this talk of floods.  “It’s a huge uptick,” she said. “This is clearly on their minds,” she said of the justices, “and it’s something that should give us pause.”

She found about 60 “explicit floodgates cases,” meaning cases using that term and its cousins.  The first was in 1908.  They reappeared in the 1940s and picked up in the 1970s. Nearly half are from 2000 or later, and 14 are from the last four terms....

In an article to be published in September in The University of Chicago Law Review, Professor Levy proposes a subtle taxonomy of floodgates arguments, approving of ones protecting executive branch officials and interpreting statutes to track Congress’s purpose. Those limits, she writes, are grounded in the separation of powers. She is also sympathetic to limits that affect the relationship between state and federal courts.

But about half of the cases are based on a more self-interested concern: the fear that federal courts will be inundated with new cases and judges may have to work too hard to keep up with them. The metaphor gained currency, Professor Levy writes, as many judges and law professors in the 1970s grew concerned that caseloads in the federal courts were becoming unmanageable. Justice Stevens said as much in a 1978 opinion, observing that appeals court judges were “struggling desperately to keep afloat in the flood of federal litigation.”

There are, to be sure, some kinds of lawsuits that are likely to be a waste of judicial time. As Justice Robert H. Jackson wrote in a 1953 concurrence, there was good reason to worry about “floods of stale, frivolous and repetitious petitions” from prisoners challenging their convictions.

“It must prejudice the occasional meritorious application to be buried in a flood of worthless ones,” he wrote. “He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.”

Congress can certainly erect barriers against such problems, and it has. The Prison Litigation Reform Act of 1995, for instance, cut back on, in Justice Alito’s words in a 2006 opinion, “a flood of prisoner litigation in the federal courts.”

But allowing judges to close the courthouse door to a class of cases on the ground that they create too much work is, Professor Levy writes, “deeply troubling,” for two reasons. One is that judges are not particularly good at predicting the consequences of their decisions. The other is that this sort of thinking is not grounded in the law.

“Barring a true flood of tens or hundreds of thousands of cases,” she wrote, “no evident principle exists to support the court taking workload concerns into account when engaging in interpretation of the law.”

March 5, 2013 at 10:07 AM | Permalink


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The question is not the flood of meritorious claims but rather the flood of non-meritorious claims. Those sitting at the top of the appellate heap who only closely look at the cases with potential merit do not necessarily see the tidal wave of cases seeking to exploit a "narrow" exception that does not actually apply to their case but which trial court judges and the attorneys have to spend significant time wading through to determine that these cases are actually frivolous.

Posted by: tmm | Mar 5, 2013 10:32:48 AM

That is true tmm but from where I sit the problem is largely attitudinal. Part of what judges do is be a gatekeeper; that is their job. The attitude among many judges is "we just want the sexy cases and the rest can go to hell." That is immature and fatuous. The idea that plaintiff's should self-select themselves out of the pool so that the only cases left are the ones that will appear in the NYT is so out of touch with reality that it beggars the imagination. Whatever happened to "you have to kiss a lot of frogs to find your prince?"

Every time I hear any judge whine about their workload the first thing that springs to my mind is they are angry they are going to miss a round of golf.

Posted by: Daniel | Mar 5, 2013 11:44:41 AM

Well here's a silly thought. Maybe if the courts and the judges who sit them would get off their fat asses and make rulings that a normal person can look at and know what the hell they mean.

Right now they sit up there and render 1000 page decisions that do nothing but cause more lawsuits as the lower courts try and figure out what the hell the decisions means and who they effect.

Posted by: rodsmith | Mar 6, 2013 1:04:47 AM

The fundamental question is: "Who are these judges?" The short answer is: "Well, they are lawyers!" Having said that, there indeed are very good defense lawyers, who are really conscientious. (The prosecutors, on the other hand, as a general rule, subject to exceptions, are basically gloryhounds, who know no bounds.) The issue is that these prosecutors charge so many people with so many offenses that it becomes nigh on impossible to adequately follow the law (be it procedural, subtsantive, or whatever else people care to call them). For the sake of expediency, the judicial system takes numerous shortcuts, thereby violating the rights - Constitutional, statutory, common law, or otherwise - and shorchanging the defendants. The plea-bargaining - with all the due respect to Bill Otis - system has GOT to go. I have seen nothing but a Pandora's box with that expedient. If that is abolished, then the "system" will "right" itself. (Other things that I actually abhor are the "harmless error" and the "plain error" doctrines; what a load of crap! Another one is the ubiquitous "nonprecendtial opinion.") My philosophy is: "You screw up; then, you own up!" It is as simple as that. Judges and lawyers (both defense and prosecution) screw up so badly that defendants end up paying the price. Judges and lawyers seldom fess up. If they screw up, then they simply get rid of the case by way of a summary, "dispositive" orders. Judge Posner of the Seventh Circuit once stated - in one of his opinions- that defendants have the luxury of reading the law books in prison, and they choose to fight. Are we in any rightful position to blame them? As lawyers, we do not even do our jobs correctly, in the very first instance. Also, most of the lawyers do not ask their clients (defendants) to beintimately involved in the case. I do not about you guys, but I have personally seen that a case could literally turn on a seemingly miute detail that a defendant might not have thought to convey, and the lawyer might have not thought enough to "specifically" ask. (This has actually happened in some of thecases that I have personally seen.) After all, understanding law is not that difficult; so the "average" defendants should be able to quickly grasp the issue and assist their counsel. The problem is that the counsel do want their defendants' "assistance," lest they be shown up (much like the physicians).

In the defense of the bar, I must say that the "law" has become so complex and mercurial that we cannot possibly keep up with the "advances." The problem is that the lawyers take on too many cases at the same time (all in the name of making money) and miserably fail at them. Look, a decent lawyer can only "fully" focus on not more than 4-5 complex cases at any given time. (That, per se, is a stretch, requiring a lot of personal sacrifices, which most of us are unwilling, or unable, to do.) In my opinion, the public defenders do a far better job (but nowhere near ideal) than the rest of the defense bar. In fact, I feel that the "reatined" attorneys probably fare the worst in terms of performance and zealously defending their clients.

I honestly believe that by getting rid of the plea-baragining system, we all will be better off. GET RID OF IT! It is absolutely no good.

Posted by: John Marshall | Mar 6, 2013 2:01:30 PM

Couldn't agree more John. About the fact that all judges are lawyers....and plea bargains. Especially when you consider that legally under or constitution they are illegal in the first place. What was to be a limited exception has become the norm. time to mark it as a failed attempt and move to something else. Maybe TRIALS!

as for the judges all being lawyers. Might be time to take the law back.. require 60% of all judges to be NORMAL people. Require all law to be written in NORMAL English! Like the army instruction manuals. Require all law to be written at an 8th grade reading lvl!

Posted by: rodsmith | Mar 6, 2013 9:58:18 PM

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