2—Fiat—courts will shelve resources in other areas to enforce the plan.

In the most direct mechanism, courts foreclose a particular cause of action, effectively withdrawing all judicial resources from that category of litigation so that they can be reserved for other, "more important" cases. This occurs, for instance, when courts embrace the "floodgates" argument, the idea that

certain sorts of law suits should not be allowed because to do so would 'swamp' the courts with litigation. The court supposes that if it were to allow that type of suit it would lack the time to consider promptly enough other law suits aiming to vindicate rights that are, taken together, more important than the rights it therefore proposes to bar.

The access-to-justice concern with the floodgates argument is that courts invoke it disproportionately to avoid having to deal with disfavored claims typically brought by disfavored groups of litigants, such as prisoners or discrimination plaintiffs. When they do so, courts are effectively reallocating their resources away from those disfavored cases toward ones deemed more important.

Courts can also end up distributing judicial resources among different categories of cases somewhat more indirectly, simply by devoting more time and attention to some and thereby leaving less for others. This seems to be one potential concern with the practice that Judith Resnik has dubbed "managerial judging," whereby judges focus on the "managerial" tasks associated with shepherding cases through the pretrial phase (usually resulting in settlement) at the expense of the more traditionally "adjudicatory" tasks associated with actually deciding cases on the merits. Criticisms of managerial judging have tended to focus on [*1492] the practice's costs for managed cases, particularly the risk that judges will abuse their power to prematurely terminate potentially meritorious lawsuits. But managerial judging might also have more systemic implications for the distribution of judicial resources. In particular, insofar as more complex cases require more case management, judges who adopt a more managerial posture will end up spending more time and attention on complex cases than they otherwise would, necessarily reducing the time and attention they have to spend on more routine cases. The prevalence of managerial judging can thereby end up slighting routine cases. Once again, from an access-to-justice perspective, the worry is that courts are giving certain categories of cases short shrift so that they can focus on the ones that, from many judges' perspectives, really matter.