Judges don’t actually decide on ‘floodgates’ arguments---they’re just excuses for pre-existing policy preferences

Nonetheless, simply advancing the floodgates argument does not mean that judges are eschewing proper legal analysis in order to act in their self-interest. Rather, as Judge Posner put it, a consideration of this argument gives one pause to question its legitimacy vis-a-vis a court's control of its own caseload. 199Link to the text of the note The caseload pressures described [*406] in Part II only raise the stakes when caseload considerations are involved. 200Link to the text of the note

There are also questions of motivation. Judge Posner has noted that prior to the rise in caseloads, when judges invoked the floodgates argument, their "concern was seen as a thin excuse for not wanting to create new rights, since the judges knew nothing about the actual capacity of the judicial system, which was actually underutilized." 201Link to the text of the note A dissenting opinion often will accuse a majority of ruling out of a fear of excessive litigation. For example, in Scott v. Moore, 202Link to the text of the note Judge Wisdom writes for the dissenters that the "majority opinion is, regrettably, a subterfuge to avoid opening the floodgates of litigation." 203Link to the text of the note

Even if they differ from the stated reasoning, judges' unstated and often subconscious considerations cannot be controlled. Not every judge practices what Judge Posner defines as judicial candor, namely "admitting that the judge's personal policy preferences or values play a role in the judicial process." 204Link to the text of the note