Judging the flood of litigation

University of Chicago Law Review

Volumn 80, Issue 3, 2013, Pages 1007-1077

  Levy, Marin K ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84883207639     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (165)

1. Although a floodgates argument appears in the Supreme Court as early as 1908 in Ex parte Young, 209 US 123, 166-67 (1908), the Court does not appear to consider this kind of argument consistently until the mid-1940s.
2. See, for example, De Beers Consolidated Mines, Ltd v United States, 325 US 212, 225 (1945) (Douglas dissenting);
3. United States v South-Eastern Underwriters Association, 322 US 533, 583 (1944) (Stone dissenting).
4. That said, floodgates arguments have existed outside the Court for far longer. Within the United States, the earliest recorded use of the phrase "the floodgates of litigation" comes from Whitbeck v Cook, 15 Johnson Cas 483, 491 (NY Sup Ct 1818).
5. See also Adam Freedman, The Party of the First Part: The Curious World of Legalese 73 (Henry Holt 2007).
6. Outside the United States, this kind of argument can be found in judicial opinions as early as the late 1700s. See Governor and Company of the British Cast Plate Manufacturers v Meredith, 100 Eng Rep 1306, 1307 (1792) (Kenyon) ("If this action could be maintained, every Turnpike Act, Paving Act and Navigation Act, would give rise to an infinity of actions.").
7. See McQuiggin v Perkins, 133 S Ct 1924, 1943 (2013) (Scalia dissenting);
8. Johnson v Williams, 133 S Ct 1088, 1097 (2013); id at 1102 (Scalia concurring);
9. Henderson v United States, 133 S Ct 1121, 1130 (2013);
10. Arkansas Game and Fish Commission v United States, 133 S Ct 511, 521 (2012);
11. Mohamad v Palestinian Authority, 132 S Ct 1702, 1711 (2012) (Breyer concurring);
12. Lafler v Cooper, 132 S Ct 1376, 1389-90 (2012);
13. Mims v Arrow Financial Services, LLC, 132 S Ct 740, 753 (2012);
14. Perry v New Hampshire, 132 S Ct 716, 737-38 (2012) (Sotomayor dissenting);
15. Connick v Thompson, 131 S Ct 1350, 1382 n 17 (2011) (Ginsburg dissenting);
16. Skinner v Switzer, 131 S Ct 1289, 1299-1300 (2011);
17. McDonald v City of Chicago, Illinois, 130 S Ct 3020, 3115 (2010) (Stevens dissenting);
18. Jerman v Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S Ct 1605, 1620 (2010);
19. Shady Grove Orthopedic Associates, PA v Allstate Insurance Co, 130 S Ct 1431, 1472 n 14 (2010) (Ginsburg dissenting);
20. Padilla v Kentucky, 130 S Ct 1473, 1484-85 (2010).
21. See, for example, Mims, 132 S Ct at 753 ("Arrow's floodgates argument assumes a shocking degree of noncompliance with the [Telephone Consumer Protection] Act and seems to us more imaginary than real.") (quotation marks and citation omitted); Lafler, 132 S Ct at 1389 ("Petitioner argues that implementing a remedy here will open the floodgates to litigation by defendants seeking to unsettle their convictions. Petitioner's concern is misplaced."); Padilla, 130 S Ct at 1484-85 ("We confronted a similar 'floodgates' concern in Hill ⋯. A flood did not follow in that decision's wake."), citing Hill v Lockhart, 474 US 52, 58 (1985).
22. See, for example, Wilkie v Robbins, 551 US 537, 569 (2007) (Ginsburg concurring in part and dissenting in part) ("[T]he Court rejects his claim, for it fears the consequences. Allowing Robbins to pursue this suit, the Court maintains, would open the floodgates to a host of unworthy suits 'in every sphere of legitimate governmental action affecting property interests.'");
23. Schriro v Landrigan, 550 US 465, 499 (2007) (Stevens dissenting) ("In the end, the Court's decision can only be explained by its increasingly familiar effort to guard the floodgates of litigation.");
24. Vieth v Jubelirer, 541 US 267, 326 n 14 (2004) (Stevens dissenting) ("The plurality's reluctance to recognize the justiciability of partisan gerrymanders seems driven in part by a fear that recognizing such claims will give rise to a flood of litigation.").
25. See, for example, Ellie Margolis, Closing the Floodgates: Making Persuasive Policy Arguments in Appellate Briefs, 62 Mont L Rev 59, 73 (2001) (defining a "'floodgates of litigation' argument" as one that "asserts that a proposed rule, if adopted, will inundate the court with lawsuits"). To be clear, the Court of course routinely considers arguments that touch on concerns about future litigation, such as parade of horribles and slippery slope arguments. See notes 36-37. For my own part, I see the consideration of these arguments often as attempts by the justices to test their legal principles through a kind of reflective equilibrium - seeing whether they can support the same principle when faced with a different set of facts. In this way, unlike floodgates arguments, these other arguments are not consequentialist. Regardless, a full examination of all Supreme Court arguments regarding future litigation is outside the scope of this Article; rather, the focus here is on those arguments that appear to be particularly concerned with volume - namely, over the number of cases that any one decision might cause.
26. Scholars have used this particular phrase from the mid-1970s to today. See Daniel J. Meador, Appellate Courts: Staff and Process in the Crisis of Volume 7-9 (West 1974);
27. Bert I. Huang, Lightened Scrutiny, 124 Harv L Rev 1109, 1112 (2011).
28. This phrase originated with Chief Justice Marshall. See Marbury v Madison, 5 US (1 Cranch) 137, 163 (1803).
29. Although Marbury itself presented an instance of a legal injury that did not result in a remedy from the Court, justices have frequently invoked the phrase in a literal way. See, for example, Alden v Maine, 527 US 706, 812 (1999) (Souter dissenting);
30. Lujan v Defenders of Wildlife, 504 US 555, 606 (1992) (Blackmun dissenting);
31. Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388, 397 (1971);
32. Baker v Carr, 369 US 186, 208 (1962).
33. The discussion of floodgates has received surprisingly little attention from legal academics. A limited number of scholars have discussed this line of argumentation in articles on other topics or in practical guides. See, for example, Susan Bandes, The Negative Constitution: A Critique, 88 Mich L Rev 2271, 2326-30 (1990) (discussing the floodgates argument in the context of affirmative and negative constitutional duties);
34. Margolis, 62 Mont L Rev at 73 (cited in note 8) (including information on floodgates arguments in a guide on writing appellate briefs). However, the only scholarship completely devoted to the topic of which I am aware is a thoughtful student comment.
35. See generally Toby J. Stern, Comment, Federal Judges and Fearing the "Floodgates of Litigation", 6 U Pa J Con L 377 (2003).
36. To be clear, I am not claiming that floodgates arguments have been dispositive in all or even most of the cases in which they have been raised. Rather, I am asserting that this kind of reasoning has directly impacted the outcome of at least a few key cases. See, for example, Grable & Sons Metal Products, Inc v Darue Engineering & Manufacturing, 545 US 308, 319-20 (2005); Wilkie, 551 US at 562. And it has at least been a relevant factor in many of the cases discussed in Parts I, II, and III.
37. See, for example, Wilkie, 551 US at 577 (Ginsburg concurring in part and dissenting in part) ("The 'floodgates' argument the Court today embraces has been rehearsed and rejected before."). It is worth noting that on at least one occasion, the Court has used the phrase to mean something akin to a slippery slope argument. See Morris v Gressette, 432 US 491, 506 n 23 (1977): Mr. Justice Marshall's dissent opens with a "floodgates" argument: If there is no judicial review when the Attorney General misunderstands his legal duty, there also will be no judicial review when at sometime in the future the Attorney General bargains acquiescence in a discriminatory change in a covered State's voting laws in return for that State's electoral votes. The discussion here includes only those arguments centered on the potential for increased litigation. Additionally, at least among lower courts, there have been instances in which a floodgates argument is invoked in a positive manner, with the court welcoming a potential increase in litigation on a particular subject (with thanks to Professor Richard Lazarus for this point).
38. See, for example, Calvert Cliffs' Coordinating Commission v United States Atomic Energy Commission, 449 F2d 1109, 1111 (DC Cir 1971). In the Supreme Court, I only found cases in which a flood was perceived to be a threat; as such, the discussion here only focuses on the concerns - and not the promise - of potential litigation.
39. See, for example, Bowen v Michigan Academy of Family Physicians, 476 US 667, 680 n 11 (1986) ("We do not believe that our decision will open the floodgates to millions of Part B Medicare claims⋯. We observed no flood of litigation in the first 20 years of operation of Part B of the Medicare program, and we seriously doubt that we will be inundated in the future.").
40. See, for example, Davis v Passman, 442 US 228, 248 (1979) (dismissing the lower court's concern of "deluging federal courts with claims").
41. See Clinton v Jones, 520 US 681, 722-23 (1997) (Breyer concurring).
42. See De Beers Consolidated Mines, 325 US at 223-25 (Douglas dissenting).
43. See Solem v Helm, 463 US 277, 314-15 (1983) (Burger dissenting).
44. Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as "Law" and the Erie Doctrine, 120 Yale L J 1898, 1990-97 (2011).
45. See United States v Maze, 414 US 395, 407 (1974) (Burger dissenting).
46. M.L.B. v S.L.J., 519 US 102, 129-30 (1996) (Thomas dissenting) (describing how, as a result of the Court's decision, state courts would be required to furnish free trial transcripts in numerous kinds of cases).
47. See Neil S. Siegel, Prudentialism in McDonald v. City of Chicago, 6 Duke J Const L & Pub Pol 16, 16-17 (2010).
48. Consider Note, Satisfying the "Appearance of Justice": The Uses of Apparent Impropriety in Constitutional Adjudication, 117 Harv L Rev 2708 (2004) (suggesting that apparent-impropriety concerns should be determined contextually rather than categorically).
49. For a prime example of this type of scholarly literature, see generally Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv L Rev 1026 (2003) (providing a detailed exposition of slippery slope arguments). For related scholarship,
50. see generally Russell B. Korobkin and Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 Cal L Rev 1051 (2000) (exploring the use of the rationality assumption in legal scholarship); Gluck, 120 Yale L J 1898 (cited in note 22) (analyzing the Erie doctrine in a decade's worth of federal and state court cases).
51. See Hudson v McMillian, 503 US 1, 15 (1992) (Blackmun concurring).
52. I use the term "case-management practices" to describe administrative means that the federal courts of appeals employ to manage their dockets, such as decreasing the percentage of cases that receive oral argument and result in published opinions. See, for example, Marin K. Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, 61 Duke L J 315, 320-25 (2011).
53. See, for example, Shady Grove Orthopedic Associates, PA v Allstate Insurance Co, 130 S Ct 1431, 1465-66 n 5 (2010) (Ginsburg dissenting): Shady Grove projects that a dispensation in favor of Allstate would require "courts in all diversity class actions ⋯ [to] look to state rules and decisional law rather than to Rule 23 ⋯ in making their class certification decisions." This slippery-slope projection is both familiar and false.
54. Cf. R. Bork, The Tempting of America 169 (1990) ("Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom."). (citations omitted). For a broader discussion of slippery slope arguments, see generally Volokh, 116 Harv L Rev 1026 (cited in note 32).
55. See, for example, Eastern Associated Coal Corp v United Mine Workers of America, District 17, 531 US 57, 69 (2000) (Scalia concurring) ("One can, of course, summon up a parade of horribles, such as an arbitration award ordering an airline to reinstate an alcoholic pilot who somehow escapes being grounded by force of law.");
56. Goldman v Weinberger, 475 US 503, 519 (1986) (Brennan dissenting): [T]he Air Force argues that while Dr. Goldman describes his yarmulke as an "unobtrusive" addition to his uniform, obtrusiveness is a purely relative, standardless judgment. The Government notes that while a yarmulke might not seem obtrusive to a Jew, neither does a turban to a Sikh, a saffron robe to a Satchidananda Ashram-Integral Yogi, nor dreadlocks to a Rastafarian. If the Court were to require the Air Force to permit yarmulkes, the service must also allow all of these other forms of dress and grooming. The Government dangles before the Court a classic parade of horribles ⋯. Most recently, the parade of horribles was recast as "the broccoli horrible" by dissenting Justices in October Term 2011's decision on the Affordable Care Act.
57. See National Federation of Independent Business v Sebelius, 132 S Ct 2566, 2624 (2012) (Ginsburg concurring in part and dissenting in part).
58. For recent judicial examples, see Geinosky v City of Chicago, 675 F3d 743, 748 (7th Cir 2012) ("We do not credit the city's assertion that allowing this suit will open the floodgates to a wave of ordinary malicious prosecution (or other tort cases) brought as constitutional class-of-one claims.");
59. United States v City of Loveland, Ohio, 621 F3d 465, 472 (6th Cir 2010) ("Because federal courts are already charged with enforcing the Clean Water Act ⋯ the district court's exercise of jurisdiction over this matter would not open the floodgates of litigation that might overwhelm the federal courts.");
60. Arar v Ashcroft, 585 F3d 559, 629-30 n 7 (2d Cir 2009) (Pooler dissenting): Because plaintiffs must meet a plausibility standard for claims against federal officials under Ashcroft v. Iqbal, I am not concerned that subjecting federal officials to liability under the [Torture Victim Protection Act] would open the floodgates to a wave of meritless litigation. (citation omitted).
61. For recent scholarly examples, see F. Andrew Hessick, Probabilistic Standing, 106 Nw U L Rev 55, 89 (2012) ("A fourth objection to expanding standing to all risks of injury is that it would open the floodgates of litigation and overburden the federal dockets.");
62. Jonathan Remy Nash, On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction, 65 Vand L Rev 509, 555 (2012) ("One might be concerned ⋯ about opening the floodgates of federal court litigation. The argument that there are simply too many federal question cases for the federal courts to handle is somewhat responsive to this point.");
63. Richard Lazarus, The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek behind the Curtains, 100 Georgetown L J 1507, 1516 (2012) ("In the context of litigation, a 'flood' is normally treated as something to be avoided - it is common to argue that a particular legal theory should be rejected because its embrace would 'open the floodgates of litigation.'").
64. See id at 411 (Burger dissenting); id at 427-28 (Black dissenting). See also James E. Pfander and David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 Georgetown L J 117, 117-18 (2009).
65. See, for example, Anya Bernstein, Congressional Will and the Role of the Executive in Bivens Actions: What Is Special about Special Factors, 45 Ind L Rev 719, 729 (2012) (describing the "common understanding of Bivens's central problem" to be "one of the separation of judicial from legislative powers").
66. Just prior to Bivens, the United States had experienced a rise in crime rates. See Department of Justice, Uniform Crime Reporting Statistics (Mar 29, 2010), online at http://www.ucrdatatool.gov/Search/Crime/State/ RunCrimeStatebyState.cfm (visited Sept 10, 2013) (reporting that both the violent crime rate and the property crime rate more than doubled between 1960 and 1970);
67. Carol S. Steiker, Book Review, Capital Punishment and Contingency, 125 Harv L Rev 760, 769 (2012) (noting the "rising crime rates during the 1960s").
68. Indeed, not long after the decision came down, scholars suggested that the Court was wrong to be so optimistic, particularly regarding how costly allowing civil litigation would be for the executive. See Stuart Minor Benjamin, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, 78 Tex L Rev 269, 281 n 45 (1999) (noting how President Clinton subsequently argued that the Court "drastically underestimated" the extent to which civil litigation would burden the President's time and how commentators suggested that events after Jones proved the prediction to be "flatly wrong and even laughable"). Some even questioned whether the Court could appropriately overrule Jones only a few years later.
69. See, for example, Michael C. Dorf, The Supreme Court, 1997 Term - Foreword: The Limits of Socratic Deliberation, 112 Harv L Rev 4, 76 (1998).
70. Professor Michael Dorf suggested that "the answer depends on whether one views the course of events as merely idiosyncratic rather than as a harbinger of likely litigation against future Presidents." Id. Perhaps most telling, the Court later, in Cheney v United States District Court for the District of Columbia, 542 US 367 (2004), "took back some of the ground it had given away" in Jones, as lower courts "were instructed to better protect internal executive branch deliberations from litigation."
71. Richard H. Pildes, The Supreme Court, 2003 Term - Foreword: The Constitutionalization of Democratic Politics, 118 Harv L Rev 29, 35-36 (2004) (citations omitted).
72. See US Const Art III, § 2, cl 2. But for a thoughtful analysis of the limits of Congress's power to affect the Court's jurisdiction, see Lawrence Gene Sager, The Supreme Court, 1981 Term - Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv L Rev 17, 20-22 (1981).
73. See, for example, INS v St. Cyr, 533 US 289, 298 (2001) ("For the INS to prevail it must overcome both the strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction.");
74. American National Red Cross v S.G., 505 US 247, 258 (1992) ("Respondents also claim that language used in congressional charters enacted closely in time to the 1947 amendment casts doubt on congressional intent thereby to confer federal jurisdiction over cases involving the Red Cross.");
75. Merrell Dow Pharmaceuticals Inc v Thompson, 478 US 804, 810 (1986) ("[I]n exploring the outer reaches of § 1331, determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system.").
76. De Beers Consolidated Mines, 325 US at 223 (Douglas dissenting), citing Expediting Act of 1903, Pub L No 57-82, ch 544, 32 Stat 823, codified as amended at 15 USC § 29. The purpose of the Expediting Act was to allow the Attorney General to seek "expeditious treatment" of cases brought under the Sherman Act that were deemed to be of general public importance.
77. Barak Y. Orbach, Antitrust and Pricing in the Motion Picture Industry, 21 Yale J Reg 317, 344 n 145 (2004).
78. De Beers Consolidated Mines, 325 US at 225 (Douglas dissenting).
79. Just one year after Solem was decided, Congress passed the Sentencing Reform Act of 1984, which provided for appellate review. See Sentencing Reform Act of 1984, Pub L No 98-473, 98 Stat 1987, codified as amended at 18 USC § 3551 et seq and 28 USC § 991 et seq. See also Kate Stith and José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 2 (Chicago 1998) (describing one of the "hallmarks" of the Sentencing Reform Act as providing "for the first time ⋯ for appellate review of sentences").
80. Id (Burger dissenting). See also Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 Mich L Rev 1145, 1182-86 (2009) (describing the administrative concerns attendant with the Court's proportionality jurisprudence).
81. Consider Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 Tex L Rev 959, 1012 (2008) (assessing the significance of the appearance of various constitutional decisions).
82. Through the Medicare Act, Congress created a scheme for the judicial review of certain Medicare claims and not others, such as those under general federal question jurisdiction. See Social Security Amendments of 1965 § 102(a), Pub L No 89-97, 79 Stat 286, 330, 331, codified as amended at 42 USC §§ 1395ff(B)(1), 1395ii; 42 USC § 405(g). See also Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex L Rev 339, 356-57 (2005) (describing Michigan Academy of Family Physicians and the Medicare Act more generally).
83. Michigan Academy of Family Physicians, 476 US at 669.
84. Id. The Court went on to say that "as one commentator pointed out, 'permitting review only [of] ⋯ a particular statutory or administrative standard ⋯ would not result in a costly flood of litigation, because the validity of a standard can be readily established, at times even in a single case.'" Id (alterations in original), quoting Note, Congressional Preclusion of Judicial Review of Federal Benefit Disbursement: Reasserting Separation of Powers, 97 Harv L Rev 778, 792 (1984).
85. Id. See also Samuel R. Wiseman, Habeas after Pinholster, 53 BC L Rev 953, 1004-05 (2012).
86. In a slightly separate vein, the Court has decided cases in which it has referred to Congress's attempts to address a flood of cases through legislation. See, for example, Jones v Bock, 549 US 199, 203 (2007): Our legal system [] remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are fairly handled according to law. The challenge lies in ensuring that the flood of nonmeritorious claims does not submerge and effectively preclude consideration of the allegations with merit. Congress addressed that challenge in the PLRA. (citation omitted);
87. Woodford v Ngo, 548 US 81, 91-92 n 2 (2006): As for the suggestion that the PLRA might be meant to require proper exhaustion of nonconstitutional claims but not constitutional claims, we fail to see how such a carve-out would serve Congress' purpose of addressing a flood of prisoner litigation in the federal courts when the overwhelming majority of prisoner civil rights and prison condition suits are based on the Constitution. (citation omitted).
88. Id at 1473 (Ginsburg dissenting). There was also a legislative intent element to this argument - Justice Ginsburg noted that surely Congress did not mean to cause this outcome when creating the Class Action Fairness Act of 2005. Pub L No 109-2, 119 Stat 4, codified in various sections of Title 28. See Shady Grove Orthopedic Associates, 130 S Ct at 1473 (Ginsburg dissenting).
89. See Kermit Roosevelt III, Choice of Law in Federal Courts: From Erie and Klaxon to CAFA and Shady Grove, 106 Nw U L Rev 1, 50-53 (2012).
90. Pub L No 73-415, ch 651, 48 Stat 1064 (1934), codified as amended at 28 USC § 2072. See also Stephen B. Burbank and Tobias Barrington Wolff, Redeeming the Missed Opportunities of Shady Grove, 159 U Pa L Rev 17, 25-53 (2010).
91. See Adam N. Steinman, Our Class Action Federalism: Erie and the Rules Enabling Act After Shady Grove, 86 Notre Dame L Rev 1131, 1137-43 (2011).
92. Shady Grove Orthopedic Associates, 130 S Ct at 1472-73 n 14 (Ginsburg dissenting).
93. Justice Brennan, joined by Justices White, Marshall, and Blackmun, dissented from the majority's holding in Merrell Dow, arguing that the Court's new test for federal question jurisdiction was "infinitely malleable." Id at 821-23 n 1 (Brennan dissenting). Court scholars were even stronger in their criticism. See, for example, Martin Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 99-102 (Michie 2d ed 1990).
94. Grable & Sons Metal Products, 545 US at 310-11.
95. Grable & Sons Metal Products, 545 US at 315.
96. In a related vein, the Court has considered concerns that a particular holding would lead to a flood of cases that would create mutually exclusive obligations for the states. See Employment Division, Department of Human Resources of Oregon v Smith, 494 US 872, 916 (1990) (Blackmun dissenting): The State fears that, if it grants an exemption for religious peyote use, a flood of other claims to religious exemptions will follow. It would then be placed in a dilemma, it says, between allowing a patchwork of exemptions that would hinder its law enforcement efforts, and risking a violation of the Establishment Clause by arbitrarily limiting its religious exemptions.
97. See Stephen Loffredo and Don Friedman, Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings, 25 Touro L Rev 273, 311 (2009): Lassiter is most intelligible through the lens of underenforcement ⋯ as a prudential determination to cabin the so-called "due process revolution" - and calm the institutional, federalism, and separation-of-powers concerns it carried in its wake - by drawing a doctrinally arbitrary line to close the "floodgates" the Court apparently feared.
98. See Note, Access to Justice - Civil Right to Counsel - California Establishes Pilot Programs to Expand Access to Counsel for Low-Income Parties - Act of Oct. 11, 2009, ch. 457 (Codified in Scattered Sections of Cal. Bus. & Prof. Code and Cal. Gov't Code), 123 Harv L Rev 1532, 1536 (2010).
99. See id at 107. See also Judith Resnik, Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 U Pa L Rev 2119, 2135 (2000) (describing how requiring a subsidy for this "and then only for this" class of litigant "required the Court to thread a complex path in light of contemporary equal protection and due process law").
100. See Mayer v City of Chicago, 404 US 189, 193-94 (1971) (holding that the Equal Protection Clause requires providing an indigent criminal defendant appealing his conviction with an adequate record even in cases involving a minor offense);
101. Griffin v Illinois, 351 US 12, 19 (1956) (plurality) (holding that a state must provide an indigent criminal defendant appealing his conviction with a trial transcript or its equivalent).
102. For another example of a concern over increasing filings in the state courts, see Apprendi v New Jersey, 530 US 466, 550-51 (2000) (O'Connor dissenting): [P]erhaps the most significant impact of the Court's decision will be a practical one - its unsettling effect on sentencing conducted under current federal and state determinate-sentencing schemes⋯. Thus, with respect to past sentences handed down by judges under determinate-sentencing schemes, the Court's decision threatens to unleash a flood of petitions by convicted defendants seeking to invalidate their sentences in whole or in part on the authority of the Court's decision today. Statistics compiled by the United States Sentencing Commission reveal that almost a half-million cases have been sentenced under the Sentencing Guidelines since 1989. Federal cases constitute only the tip of the iceberg⋯. Because many States, like New Jersey, have determinate-sentencing schemes, the number of individual sentences drawn into question by the Court's decision could be colossal.
103. See Commission on Structural Alternatives for the Federal Courts of Appeals, Final Report 14 (Dec 18, 1998), online at http://www.library.unt.edu/ gpo/csafca/final/appstruc.pdf (visited Sept 10, 2013).
104. See Huang, 124 Harv L Rev at 1112 (cited in note 9).
105. See also Levy, 61 Duke L J at 321 n 21 (cited in note 35).
106. *1 (Administrative Office of the US Courts Mar, 2013), online at http://www.uscourts.gov/viewer. aspx?doc=/uscourts/Statistics/FederalCourtManagementStatistics/2013/ appeals-fcms-profiles-march-2013.pdf&page=1 (visited Sept 10, 2013).
107. *1 (Administrative Office of the US Courts Mar, 2013) online at http://www.uscourts.gov/viewer.aspx?doc=/uscourts/ Statistics/FederalCourtManagementStatistics/2013/district-fcms-profiles-march- 2013.pdf&page=1 (visited Sept 10, 2013).
108. It is worth remembering that before Congress enacted legislation in 1988 to make the Court's jurisdiction almost entirely discretionary, the Court's own docket was viewed as "unmanageable." See Kathryn A. Watts, Constraining Certiorari Using Administrative Law Principles, 160 U Penn L Rev 1, 13 (2011).
109. Indeed, in 1972, Chief Justice Burger created a commission, known as the Freund Study Group, specifically to examine the demanding workload of the Supreme Court and ways to reduce the burden on the Court. See Judith A. McKenna, Structural and Other Alternatives for the Federal Courts of Appeals: Report to the United States Congress and the Judicial Conference of the United States 76 (1993).
110. See, for example, James E. Pfander, Iqbal, Bivens, and the Role of Judge-Made Law in Constitutional Litigation, 114 Penn St L Rev 1387, 1407 (2010) (noting the "widely held view that frivolous Bivens claims ⋯ have multiplied over the past generation to a degree that threatens to overwhelm the federal judiciary").
111. See also Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 Stan L Rev 809, 846 (2010) (noting that there are "those in the judiciary who see Bivens claims as almost universally frivolous" but also providing data that indicates that Bivens claims have enjoyed "greater success than has been assumed to date").
112. Judges and justices have consistently viewed habeas filings as being filled with a high percentage of frivolous cases. Justice Jackson wrote in Brown v Allen, 344 US 443 (1953), that "[i]t must prejudice the occasional meritorious application [for habeas corpus] to be buried in a flood of worthless ones." Id at 537 (Jackson concurring). Nearly twenty years later, Judge Henry Friendly commented on Justice Jackson's sentiment, writing, "The thought may be distasteful but no judge can honestly deny it is real."
113. Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U Chi L Rev 142, 149 (1970).
114. The number of frivolous filings from prisoners - particularly pro se - was perceived to be such a problem that Congress passed the PLRA. In the words of the Supreme Court, "Beyond doubt, Congress enacted [the exhaustion provision of the PLRA] to reduce the quantity and improve the quality of prisoner suits." Porter v Nussle, 534 US 516, 524 (2002). Still, Judge Jon Newman of the Second Circuit Court of Appeals wrote that the challenge for courts, even after the passage of the PLRA, is "to avoid letting the large number of frivolous complaints and appeals impair their conscientious consideration of the few meritorious cases that are filed."
115. Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in Haystacks, 62 Brooklyn L Rev 519, 526-27 (1996).
116. Floodgates arguments, of course, have existed outside of these three lines of cases. See, for example, Agostini v Felton, 521 US 203, 238 (1997) ("If we were to sanction this use of Rule 60(b)(5), respondents argue, we would encourage litigants to burden the federal courts with a deluge of Rule 60(b)(5) motions premised on nothing more than the claim that various judges or Justices have stated that the law has changed.");
117. Stack v Boyle, 342 US 1, 11-13 (1951) (Jackson concurring) (describing the need for an approach to reviewing bail orders that "would not open the floodgates to a multitude of trivial disputes abusive of the motion procedure"). These three lines of cases are simply the most prominent among the cases surveyed.
118. See George D. Brown, "Counter-Counter-Terrorism via Lawsuit" - The Bivens Impasse, 82 S Cal L Rev 841, 883 (2009).
119. Davis v Passman, 571 F2d 793, 800 (5th Cir 1978).
120. Specifically, the Court said that its task was to "weigh[] reasons for and against the creation of a new cause of action." Id at 554. This inquiry is also known as "Bivens step two." Id, citing Bush v Lucas, 462 US 367, 378 (1983).
121. Wilkie, 551 US at 581 (Ginsburg concurring in part and dissenting in part). Specifically, Justice Ginsburg reasoned that "[i]f numerous Bivens claims would eventuate were courts to entertain claims like Robbins', then courts should already have encountered endeavors to mount Fifth Amendment Takings Clause suits under § 1983." Id (Ginsburg concurring in part and dissenting in part). She noted, however, that "the Court of Appeals, the Solicitor General, and Robbins all agree[d] that there [were] no reported cases on charges of retaliation by state officials against the exercise of Taking Clause rights." Id (Ginsburg concurring in part and dissenting in part), citing Robbins v Wilkie, 433 F3d 755, 767 (10th Cir 2006),
122. See note 171. Indeed, following the Court's decision in Wilkie, judges and scholars alike have concluded that the Bivens doctrine has been greatly diminished. See, for example, Marsha S. Berzon, Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts, 84 NYU L Rev 681, 699 (2009) ("Bivens today appears to be hanging by a thread.");
123. Laurence H. Tribe, Death by a Thousand Cuts: Constitutional Wrongs without Remedies after Wilkie v. Robbins, 2007 Cato S Ct Rev 23, 26 ("[T]he best that can be said of the Bivens doctrine is that it is on life support with little prospect of recovery."). This view was reinforced during October Term 2011, when the Court declined to find a Bivens action against federal contractors in Minneci v Pollard, 132 S Ct 617, 623 (2012). For a thoughtful analysis of the Court's current Bivens jurisprudence,
124. see generally Carlos M. Vázquez and Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 U Pa L Rev 509 (2013).
125. John H. Blume, Sheri Lynn Johnson, and Keir M. Weyble, In Defense of Noncapital Habeas: A Response to Hoffman and King, 96 Cornell L Rev 435, 440 (2011).
126. See also Max Rosenn, The Great Writ - A Reflection of Societal Change, 44 Ohio St L J 337, 345 (1983) ("The commencement of the modern era of habeas corpus may be traced to the Court's historic decision in 1953 in the Brown v. Allen cases.").
127. Id at 537 (Jackson concurring). Ultimately Justice Jackson joined in the result of the case, but he espoused a different, more limited role for federal courts in the review of habeas petitions. Id at 545-48. See also Richard H. Fallon Jr and Daniel J. Meltzer, New Law, Non-retroactivity, and Constitutional Remedies, 104 Harv L Rev 1731, 1814-15 (1991) (describing Justice Jackson's theory of habeas corpus from Brown v Allen).
128. Id at 266. See also Jason Mazzone, When the Supreme Court Is Not Supreme, 104 Nw U L Rev 979, 1023 (2010) (delineating the majority's analysis in the case).
129. *7 (filed Nov 17, 1988) (available on Westlaw at 1988 WL 1025738). The Court ultimately concluded, [O]ur role in appraising petitioners' reading of § 1915(d) is not to make policy, but to interpret a statute. Taking this approach, it is evident that the failure-to-state-a-claim standard of Rule 12(b)(6) and the frivolousness standard of § 1915(d) were devised to serve distinctive goals ⋯ [but] it does not follow that a complaint which falls afoul of the former standard will invariably fall afoul of the latter. Neitzke, 490 US at 326.
130. See id at 530. See also Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan L Rev 503, 521 (2007) (describing the Court's expectation-of-privacy analysis in Palmer).
131. Id at 4. See also Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 NYU L Rev 881, 905-06 (2009) (generally assessing the facts of the case).
132. Id at 306. See also Heather K. Gerken, Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum, 153 U Pa L Rev 503, 506 (2004).
133. See id at 727 (majority). Again, this is not to suggest that workload was a dispositive or even significant factor to the Court in Perry. For an analysis of the Court's reasoning in the case and its jurisprudence on eyewitness identifications more broadly, see generally Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vand L Rev 451 (2012).
134. Id at 2620. See also Rafael I. Pardo and Kathryn A. Watts, The Structural Exceptionalism of Bankruptcy Administration, 60 UCLA L Rev 384, 417-18 (2012).
135. Hearings on the Nomination of Clarence Thomas to the Supreme Court, 100th Cong, 2d Sess 23, 612 (1991) (statement of Senator Arlen Specter) ("Thomas Hearings") ("[T]he Court is supposed to interpret law, not to make law."). For these and similar statements,
136. see Bernard W. Bell, R-E-S-P-E-C-T: Respecting Legislative Judgments in Interpretive Theory, 78 NC L Rev 1253, 1254 n 1 (2000).
137. See also James E. Pfander and Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 NYU L Rev 1862, 1870 (2010) (noting how courts today view the purpose of qualified immunity as balancing the need to compensate victims with ensuring that public officials are not "chill[ed]" in "the zealous discharge of their appointed duties").
138. James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan L Rev 1049, 1051 & n 6 (1994), citing Thibodaux, 360 US at 35 (Brennan dissenting), Burford, 319 US at 335-36 (Douglas concurring), and Pullman, 312 US at 500.
139. Richard H. Fallon Jr, Why and How to Teach Federal Courts Today, 53 SLU L J 693, 723 (2009) ("The Hart and Wechsler casebook styles the chapter on abstention doctrines as one on 'Judicial Federalism.' This label is apt: By abstaining, a federal court typically cedes authority to a state court, and considerations of federalism will sometimes weigh heavily in favor of a federal court's doing so.").
140. See also Ernest A. Young, "The Ordinary Diet of the Law": The Presumption against Preemption in the Roberts Court, 2011 S Ct Rev 253, 315 n 332 (describing the judicial abstention doctrines as "based on broad notions of federalism").
141. See notes 148-49 and accompanying text. See also Marin K. Levy, Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time across Cases in the Federal Courts of Appeals, 81 Geo Wash L Rev 401, 407-09 (2013).
142. See generally Tim A. Baker, The Expanding Role of Magistrate Judges in the Federal Courts, 39 Valp U L Rev 661 (2005) (discussing the increased role of magistrate judges).
143. See Stephen Reinhardt, Developing the Mission: Another View, 27 Conn L Rev 877, 880 (1995);
144. William M. Richman and William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L Rev 273, 299 (1996).
145. See generally Henry J. Friendly, Averting the Flood by Lessening the Flow, 59 Cornell L Rev 634 (1974) (outlining various ways the case flow to the courts could be reduced, including creating a Court of Tax Appeals and eliminating diversity jurisdiction).
146. See also Richard A. Posner, The Federal Courts: Crisis and Reform 176 (Harvard 1985);
147. Wilfred Feinberg, Is Diversity Jurisdiction an Idea Whose Time Has Passed?, 61 NY Bar J 14, 14-15 (July 1989);
148. Edith H. Jones, Book Review, Back to the Future for Federal Appeals Courts: Rationing Federal Justice by Recovering Limited Jurisdiction, 73 Tex L Rev 1485, 1501-03 (1995);
149. Jon O. Newman, Restructuring Federal Jurisdiction: Proposals to Preserve the Federal Judicial System, 56 U Chi L Rev 761, 771-76 (1989).
150. Id at 41-44. See also Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv L Rev 1212, 1218 (1978);
151. Goodwin Liu, Education, Equality, and National Citizenship, 116 Yale L J 330, 338 (2006).
152. There have been other decisions that commentators and scholars have considered to be influenced at least partially by a desire to enhance the Court's legitimacy - most recently Sebelius. See, for example, A.E. Dick Howard, Out of Infancy: The Roberts Court at Seven, 98 Va L Rev In Brief 76, 89-90 (2012).
153. Casey, 505 US at 867. See also Richard H. Fallon Jr, Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages of Doctrinal Tension, 91 Cal L Rev 1, 27-28 (2003);
154. Kathleen M. Sullivan, The Supreme Court, 1991 Term - Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22, 70-71 (1992).
155. Martin B. Louis, Intercepting and Discouraging Doubtful Litigation: A Golden Anniversary View of Pleading, Summary Judgment, and Rule 11 Sanctions under the Federal Rules of Civil Procedure, 67 NC L Rev 1023, 1033-34 (1989).
156. David L. Noll, The Indeterminacy of Iqbal, 99 Georgetown L J 117, 123 (2010).
157. See also Adam N. Steinman, The Pleading Problem, 62 Stan L Rev 1293, 1347 (2010) ("Scholars have broken down the purpose of pleadings in a number of different ways, but they might broadly be characterized as: notice-giving, process-facilitating, and meritsscreening.").
158. Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis," and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, 78 NYU L Rev 982, 1041 (2003).
159. Paul D. Carrington, Politics and Civil Procedure Rulemaking: Reflections on Experience, 60 Duke L J 597, 611 (2010).
160. See Levy, 61 Duke L J at 323, 345-46 (cited in note 35). See also Honorable J. Clifford Wallace, Improving the Appellate Process Worldwide through Maximizing Judicial Resources, 38 Vand J Transnatl L 187, 200 (2005) ("The amount of time saved by foregoing oral argument is significant.").
161. See, for example, Joseph A. Seiner, Plausibility beyond the Complaint, 53 Wm & Mary L Rev 987, 1014 (2012) (describing the Court's decisions in Twombly and Iqbal as "enormously controversial"), citing Bell Atlantic Corp v Twombly, 550 US 544 (2007) and Ashcroft v Iqbal, 556 US 662 (2009);
162. Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85 Notre Dame L Rev 849, 883-84 (2010) (critiquing Iqbal on the ground that changes to pleading standards should be made through the Rules Enabling Act or Congress, not the Court).
163. Miller, 78 NYU L Rev at 984 (cited in note 313). It is worth noting that according to several empirical studies, in almost all categories of cases the summary judgment rates began to increase prior to the Court's decision in the trilogy of cases. See generally Joe S. Cecil, et al, A Quarter-Century of Summary Judgment Practice in Six Federal District Courts, 4 J Empirical Legal Stud 861 (2007);
164. Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting toward Bethlehem or Gomorrah?, 1 J Empirical Legal Stud 591 (2004).
165. See, for example, Sanford Levinson and Jack M. Balkin, What Are the Facts of Marbury v. Madison?, 20 Const Commen 255, 281 & n 74 (2003) (suggesting that one might "think that judges are not particularly good at predicting the future consequences of their decisions").