Posted Mar 06, 2013 11:30 am CST
The U.S. Supreme Court appears increasingly worried about opening the litigation floodgates, judging by an analysis of the metaphor in its decisions.
Duke University law professor Marin Levy found about 60 cases using the term “floodgates” or similar words, the first in 1908, the New York Times reports. Almost half, however, are from 2000 or later; 14 of them are from just the last four years. “It’s a huge uptick,” Levy told the newspaper.
Levy looks at the floodgate concerns in an article set for September publication in the University of Chicago Law Review. She is concerned about cases in which a judgment about a possible flood of litigation affects the substantive analysis. “Granting a floodgates argument,” she writes, “implies that one’s ‘protection of the laws’ depends, at least in part, on a speculation about how many others intend to claim that same protection.”
The Times notes that flooding metaphors were used by three justices in court opinions issued Feb. 20. Two justices said there would be no need to worry about a flood of litigation spurred by the rulings while a third disagreed. Floodgates analogies were also used in two oral arguments. “February was flood season at the Supreme Court,” the story says.