Docket Management solves.

This does not leave the courts defenseless against the rising tide, however; they have many tools besides substantive law with which to keep themselves afloat. Perhaps most prominently, both the district courts and the courts of appeals can avail themselves of various procedural rules to help cope with, and indeed limit, their dockets. Most plainly, the Federal Rules of Civil Procedure employ what have been called three basic pretrial “discouragement mechanisms.”311 The first mechanism is the pleading stage itself, with the possibility for a motion to dismiss. Although pleadings obviously have several purposes, scholars have come to identify a significant one as “allowing a court to screen cases for merit.”312 At this juncture, courts can siphon off some of the frivolous cases that come before them. The second mechanism is summary judgment. The main goal of Rule 56 has been said to be “filtering out cases not worthy of trial,”313 and that rule is now regarded as a “powerful tool for judges to control dockets.”314 A third mechanism is the possibility of Rule 11 sanctions, which were developed to “punish lawyers for advancing meritless contentions that wasted the courts’ attention”315 and to deter such litigation from coming into court in the first place.316 In short, the district courts have at their disposal several critical procedural rules that have been fashioned, at least in part, so that district courts can more quickly dispose of frivolous filings and streamline the litigation process more generally.

Many of the mechanisms that exist at the district court level have analogues at the courts of appeals. Through the Federal Rules of Appellate Procedure, the circuit courts have several key ways to manage their dockets and reduce the time taken by frivolous filings. Rule 34 permits appeals courts to decide cases without oral argument317—a powerful time-saving mechanism.318 Additionally, courts of appeals can rely on staff attorneys to help draft summary dispositions.319 Finally, per Rule 38, if a court of appeals determines that a particular filing was frivolous, the court can award damages and costs to the appellee.320

Moreover, these mechanisms of the federal courts are not static—if they are insufficient to curb the flow of frivolous cases, they can be altered, and indeed have been so altered in the past. Rule 34, for example, was amended in 1979 to authorize the resolution of an appeal without oral argument whenever a panel agrees that argument is unnecessary because, inter alia, an appeal is frivolous.321 Similarly, Federal Rule of Civil Procedure 11 was amended in 1983 precisely to reduce the number of frivolous filings.322

And although this has been more controversial, the Supreme Court itself has shifted the meaning of various procedural rules in its own opinions.323 In 1986, the Court in a trilogy of cases324 solidified Rule 56 as “a powerful tool for the early resolution of litigation.”325 And of course, more recently, the Court altered pleadings with its decisions in Bell Atlantic Corp v Twombly326 and Ashcroft v Iqbal.327 There can be disagreement about the propriety of the way these rules have shifted over time, but the point remains that the federal courts have an extensive set of procedures to manage their dockets, and these procedures can be ratcheted up if they prove insufficient.

What this discussion suggests is that, when compared to floodgates arguments that express interbranch and intersystemic concerns, those that express court-centered concerns are on significantly shakier ground. Barring a true flood of tens or hundreds of thousands of cases, no evident principle exists to support the Court taking workload concerns into account when engaging in “[i]nterpretation of the law.”328 Therefore, although the Court may have a legitimate interest in ensuring that the number of filings, and particularly frivolous filings, does not become too high, it should be wary of using substantive law as the limiting device. Speaking of unmeritorious cases in particular, Justice Stevens has argued, “Frivolous cases should be treated as exactly that, and not as occasions for fundamental shifts in legal doctrine. Our legal system has developed procedures for speedily disposing of unfounded claims; if they are inadequate . . . then there is something wrong with those procedures, not with the law.”329 Accordingly, the Court should have a presumption against using court-centered floodgates arguments. The problems of case flow should be addressed through case management and, more broadly, the tools of Congress.