Courts have procedural remedies to get through floods

The preceding Parts have identified and unpacked the primary types of floodgates arguments that the Supreme Court has considered. In doing so, however, the discussion has underscored a set of difficult normative questions: Should floodgates arguments ever be considered in the Court’s decision making? If so, when and why? And in such cases where it might be legitimate for the Court to rely on floodgates reasoning, is it sufficient for a party or the Court itself to assert that a deluge of cases will surely follow, or is more required to turn the outcome of the case? In light of the fact that the justices have considered such arguments in more than sixty cases—and this consideration has increased significantly over the last few terms—the need to have purchase on these questions has become all the more pressing. Answering these questions is no easy task. It is no accident that the Court has fractured—and, indeed, that individual justices have gone back and forth—on these very matters. A large part of the difficulty lies in the fact that these questions cannot be answered in a wholesale manner. As the preceding discussion demonstrates, floodgates arguments vary considerably based upon the institution that is being affected by the flood and what kinds of cases the feared flood contains. And yet, what makes these questions challenging to answer is also what illuminates one way to begin to answer them. As the analysis here shows, floodgates arguments often are best understood as a subset of a larger category of normative arguments—about the relationship between courts and Congress, for example, or about the relationship between the federal and state court systems. The primary goal of this Part is to situate the various floodgates arguments in the appropriate normative contexts. As this Part demonstrates, once situated, the use of some floodgates arguments becomes fairly easily defensible, while the use of others—precisely because theay are not supported by accepted lines of doctrine and practice—becomes far more questionable. Specifically, Part IV.A considers the arguments based on other-regarding concerns—both interbranch and intersystemic— and argues that they are tied to the constitutional principles of separation of powers and federalism, as well as the doctrines of qualified immunity and abstention. These ties, in turn, suggest that the consideration of other-regarding floodgates is defensible. To be clear, the fact that these floodgates arguments have footing in constitutional principles and doctrine does not suggest that they should be immune from scrutiny or that they should always prevail; the point is simply that this grounding at least gives them a prima facie claim to legitimacy. Part IV.B then considers court-centered floodgates arguments and finds them to be on shakier ground. The Court is vindicating no well-established constitutional principle when it defends the federal courts’ docket from caseload pressures, and these arguments have no clear doctrinal or theoretical analogue. The use of court-centered floodgates arguments therefore requires some affirmative justification, which neither the Court nor commentators have provided. Moreover, there is reason to be skeptical of this kind of prudential argument, as shaping the 1058 The University of Chicago Law Review [80:1007 docket of the federal courts is generally understood to come under the purview of Congress, and not the Court. Accordingly, this Section concludes that the justices should let the lower courts rely on the other tools that they have at their disposal— such as case-management practices—to respond to docket pressures, rather than altering substantive law. The remaining objective of this Part is to briefly consider the follow-up question to the central normative one—that is, if there are some circumstances in which it is defensible for the Court to entertain a floodgates argument, what kind of analysis or even evidence is required to affect the outcome of a case? Accordingly, Part IV.C offers some initial thoughts on the minimum amount of support a floodgates argument should have for that argument to be dispositive.