In a Adam Liptak NY Times article (via ABAJ) about a forthcoming University of Chicago Law Review paper, Duke Law Professor Marin Levy complains about the increasing use of the "opening the floodgates of litigation" metaphor in Supreme Court decisions. "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."
But that's not even remotely true. For example, imagine a court faced with an interpretative choice of applying a bright-line rule that creates certainty (but reduces some accuracy in close cases) or permitting a broad range of judicial discretion with a multi-factor balancing test. The longtime debate between rules and standards is surely informed by the inquiry whether the multifactor balancing test creates so much unpredictability that it "opens the floodgates of litigation" over that uncertainty, and thus social costs that far exceed any benefits from resolution of unfairness in the marginal case.
And, as Levy herself notes, the floodgates argument is often phrased in terms of whether a proposed interpretation creates incentives for meritless litigation. But what she doesn't discuss is some of the social costs of such litigation (her analysis focusing on habeas), which is, again, a perfectly evident principle for expressing concern about a potential decision. If a procedural interpretation creates profitable incentives for meritless litigation by making it easier for a plaintiff to impose litigation expense on a defendant and thus leverage to extract rents even when a case is without inherent factual or legal merit, a court can and should be concerned that that interpretation opens "floodgates" for such socially wasteful rent-seeking.
Levy's search focuses purely on the word "floodgates," rather than on the nature of floodgates arguments that don't use the word floodgates. So, for example, Dura Pharmaceuticals goes unmentioned in the article, though the Court's concern about a plaintiff's "tak[ing] up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value" was a substantive part of the majority's reasoning in that case. Yet Levy makes broad generalizations about floodgates arguments affecting substantive law without addressing these concerns. And the Liptak article also misses this.
Levy thanks dozens of very smart law professors in the front of her paper. Is it really the case that the academy is so divorced from litigation realities and has such an institutional bias to litigation-as-solution that not one of them raised this basic objection to her argument?
Update: Professor Levy responds in the comments, and corrects the sentence I've crossed out above. I apologize for the misunderstanding about methodology, and should have delved more deeply into the footnotes rather than relying on the necessarily abbreviated description in the newspaper. But I disagree with Levy's claim "I never suggest that concerns about litigation (or the greater social costs of litigation) are not hugely important." The line "no evident principle exists to support the court taking workload concerns into account when engaging in interpretation of the law" certainly suggests that concerns about the greater social costs of litigation are not a principle that "support the court taking workload concerns into account when engaging in interpretation of the law." Certainly, that's the takeaway message that was emphasized in the New York Times.