Court clog is fearmongering.

One of the most easily identifiable problems with the floodgates argument is that it is rarely, if ever, followed by a true analysis of the potential litigation of which it speaks. That is, one response to a floodgates argument might be, "Are you sure that a contrary position would yield a flood of litigation?" 82 This criticism is frequently leveled against the floodgates argument, especially in the realm of tort litigation. For example, as one commentator has argued: The "floodgates of litigation" argument has proven wrong time and again. The lifting of the "impact" rule in rewarding damages for mental anguish, allowing third parties to recover under contracts, and the recognition of the right to privacy, were all prophesied to overwhelm the courts with frivolous claims. They have not. This argument, one should think, is relatively strong. While the floodgates argument is generally based on policy considerations,8 5 policy arguments are rarely so indeterminate. While moral arguments are certainly not precise--one cannot quantify, say, "fairness" or 'justice"-they are simply used differently. That is, when a judge says that a decision "promote [s] justice,"8 6 he or she [they] is not speaking about a tangible, actual result. In contrast, when a judge expresses that a decision will open the floodgates of litigation, he or she [they] is saying that there will be actual, cognizable caseload results from the decision. Given how often the floodgates do not open when we are warned that they will,"' making the argument without a proper foundation is dangerous. While there certainly are situations in which a judge should consider the implications of a decision on his or her [their] caseload, 8 doing so without considering the factual bases of those implications is problematic.'8 9 And while uncertainty is an unavoidable part of the law,' 90 the language with which the floodgates argument is regularly employed expresses anything but conjecture and uncertainty. The arguments are forceful; they are intended to conjure "[i] mages of a destructive, elemental force."'9' After all, as Judge Posner notes, "So irregular has been the growth of the caseloads of each of the three tiers of the federal judiciary in the past, and so many and poorly understood are the causes of changes in judicial caseloads, that it is impossible to make responsible predictions about future changes.' 92 The failure of judges to recognize this limitation of the argument reduces the weight afforded thereto.