Floodgates of Litigation: The California Experience

There is a fascinating discussion taking place online relating to the metaphor and accompanying arguments of “floodgates of litigation” or some close variation of the phrase.  It is not uncommon for lawyers, including those of us who regularly defend against class action lawsuits and consumer legal remedy claims, to urge a court to adopt a narrow and clearly defined construction of a statute or rule because to do otherwise would open wide the floodgates to all sorts of frivolous claims.  I have made this argument a time or two and even, if it strikes me as appropriate, added a point about the court’s already overloaded docket.

The genesis of this recent “floodgates” debate is a forthcoming article written by Duke University law professor Marin K. Levy in the University of Chicago Law Review entitled Judging the Flood of Litigation.  The abstract of the article available here is as follows:

The Supreme Court has increasingly considered a particular argument: that it should avoid deciding cases in ways that would “open the floodgates of litigation.”  Despite its frequent invocation, there has been little scholarly exploration of what a floodgates argument truly means, and even less discussion of its normative basis.  This Article addresses both subjects, demonstrating for the first time the scope and surprising variation of floodgates arguments, as well as uncovering their sometimes-shaky foundations.  Relying on in-depth case studies from a wide array of issue areas, the Article shows that floodgates arguments primarily have been used to protect three institutions: coordinate branches of government, the state courts, and the federal courts themselves.  In the former two instances, the Court’s desire to avoid floods is supported, if not compelled, by independent constitutional principles and doctrine, including separation of powers and federalism.  With regard to the final instance, however, the Court has relied on floodgates arguments solely to protect itself and the rest of the federal judiciary from what it sees as an excessive workload.  This kind of self-regarding floodgates concern raises difficult questions about separation of powers and the measures courts can take to ensure their ability to administer justice.  The Article concludes by arguing for a strong presumption against court-centered floodgates arguments—positing that the Court should let the lower courts rely on alternative mechanisms, such as procedural rules and case-management techniques, to handle new claims instead of closing the courthouse doors to stave them off altogether.

A good summary of the issue also appears in a March 4, 2013 article by Adam Liptak (@adamliptak) of the New York Times.  Liptak traces this history of the phrase with some interesting insights and posits the following:  “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?”   

As a California litigator who regularly faces the realities of a severe crisis in overcrowded and underfunded state courts, I operate on the assumption that part of our problem stems from rulings and laws that create far too many private causes of action and incentivize litigation–matters that I write about at this blog.  This view is supported by my daily interactions including one end of the day ritual.  At the end of every business day, I review a series of e-mails with the names and summaries of the new case filings in Southern California.  Just reading through that list on my iPhone can take several minutes and there are more than a few descriptions that would raise the eyebrows of any sensible citizen.  The cases continue to be filed at an amazing pace and neither the courts nor Sacramento appear to be taking many serious steps to narrow the grounds on which individuals can bring claims, incuding some pretty silly consumer remedy claims.  For example, take this description of a lawsuit filed just yesterday against my favortie grocery store, Trader Joe’s: “Coat hooks are mounted too high above the floor in the facility’s restrooms.”  One wonders, did anyone consider asking the friendly folks at TJ’s to lower the coat hooks?  It would have taken all of 10 minutes to do.  But now we have a lawsuit and a case management conference for a state court judge to prepare for in the next few months.

As a consequence of this–okay I’ll say it–flood of litigation, is it any wonder that the jurisdiction in which the litigation floodgates are opened the widest appears to be reaching a breaking point that ultimately denies many access to justice?  I may be incorrect in my operating assumptions and I look forward to reading Professor Levin’s discussion on the use (and overuse) of the phrase and argument.  (Professor Levin’s focus is on the U.S. Supreme Court’s caselaw.)

An interesting dialogue has already started with this post at PointofLaw.com to which Professor Levin provided a response.  Since I have used (okay, maybe overused) the metaphor, I thought it might be fun to see what opening the floodgates (in a literal sense) looks like.  Enjoy the video.



Author: Kent Schmidt

As a Partner in the Southern California office, Kent practices in virtually all types of general business litigation, with an emphasis in unfair business practices, First Amendment litigation, defamation, trade secret litigation, class actions, product liability, securities litigation and enforcement, commercial disputes, employment law, intellectual property and Prop 65 (environmental) claims. He is an aggressive and creative courtroom advocate, representing both plaintiffs and defendants. Having spent his entire legal career at Dorsey, Kent is adept at finding the right lawyers in the firm to collaborate with in order to provide the best representation for his clients.