‘Floodgates’ are fake---established docket control works.

First, as previously discussed, there is reason to be skeptical about the efficacy of the CAP rule in terms of reducing the overall number of cases in the federal courts. 315 Moreover, in addition to the fact that the CAP rule likely does little to reduce the overall number of opportunities for federal courts to judge the behavior of coordinate branches, there is reason to believe that the opening-the-floodgates worry itself is overblown. 316 Not only is the floodgates argument in support of the CAP rule lacking in empirical support, 317 but it may also be lacking in a clear, germane, and substantive content when used by various members of the Court. 318F or example, Professor Marin Levy has observed that "recent cases show the justices vacillating between providing assurances that their decision will not result in a deluge of new claims, and accusing each other of being driven by an improper desire to stave off such a deluge." 319 The floodgate alarm has been used in diverse and internally inconsistent contexts without the mooring benefit of evidentiary support, such that it has taken on more the character of epithet than of a serious constitutional obstacle. 320Justice Ginsburg, writing in dissent, has succinctly summarized this development, stating: "The 'floodgates' argument the Court today embraces has been rehearsed and rejected before." 321

The fact that the floodgate rationale is frequently used to support both sides of a contested determination by the Court suggests that it may lack a stable normative content. 322 The floodgate rationale is, at heart, a prediction about how future litigants will behave if the Court adopts a new rule. Yet the ordinary norms of prediction with their attendant empirical safeguards seem not to obtain. 323 Those invoking the floodgate alarm have not felt obliged to supply evidence of past instances in which the federal courts were in fact "flooded" as the result of similar rule changes, and that the Federal Rules of Civil Procedure were inadequate to address the "flood." 324 Given that members of the Court have so frequently predicted a litigatory deluge as a consequence of a rule change, it would seem a simple matter to confirm that a deluge has, in fact, occurred. 325 However, evidence of past flooding has yet to emerge within the floodgate discourse. 326

It is possible that the reason that the floodgate worry has not been documented may be because it has yet to come to pass. There is ample reason to believe that the Federal Rules of Civil Procedure are generally commensurate to the task of qualitatively stemming the tide of litigation. 327 The Federal Rules of Civil Procedure are designed to weed out duplicative, harassing, frivolous, and meritless cases. 328While no standing rule - including the CAP rule - prevents nonmeritorious cases from being filed in federal court, such cases are generally resolved on a Rule 12(b)(1) motion to dismiss. 329The Rule 12(b)(1) motion to dismiss is also the first opportunity during which a defendant can challenge standing. 330There is no strategic advantage to [*1009] defendants - in terms of the expenditure of resources - to having a case dismissed for want of standing as compared to any other grounds for dismissal under Rule 12(b)(1). 331Likewise, doctrines and mechanisms designed to conserve both judicial and defendant resources, such as claim preclusion, issue preclusion, abstention, joinder, and case consolidation, all operate to prevent horizonal lawsuits alleging the same nexus of operative facts from going forward simultaneously in multiple district courts - a point that is especially important in the emoluments context where presumably any citizen suit would allege the same operative facts. 332