1. Floodgates.
Of Justice Breyer’s three worries, the floodgates fear is perhaps the most familiar. First expressed in the early 1800s,138 the worry that one case will encourage too many others has grown almost commonplace.139 It now frequents all manner of briefs and judicial decisions140—and it has some initial purchase here. One successful suit could well invite many others, since law-changing decisions will always come from common law courts. Big numbers could well diminish quality, since judges could be saddled with too many cases and too little time. And courts could well prove uncommonly salient targets, since they would be required to make unpopular decisions and then stand open to retaliatory suit.141 Like many floodgates arguments, this one is inherently speculative, made in an anxious empirical vacuum. But it may also be true.
It may be unconvincing, too. It is not unconvincing, necessarily, simply on its own terms. Others have labeled floodgates fears dubious by definition—because they violate separation-of-powers limits, disregard congressional intentions, and mask more revealing
137 Stop the Beach, 130 S Ct at 2618–19 (Breyer concurring). For a critical response to these concerns, see generally Ilya Somin, Stop the Beach Renourishment and the Problem of Judicial Takings, 6 Duke J Const L & Pub Poly 91 (2011).
138 See Delabigarre v Bush, 2 Johnson Cas 490, 502 (NY Sup Ct 1807) (T.A. Emmet in reply) (“[I]nstead of preventing suits, [the proposed rule] would only serve to open wider the floodgates of litigation.”); Whitbeck v Cook, 15 Johnson Cas 483, 491 (NY Sup Ct 1818) (“If it could succeed, a flood-gate of litigation would be opened.”).
139 One could say that the first floodgate argument opened a floodgate to floodgates.
140 See, for example, In re Lawrence, 293 F3d 615, 621 (2d Cir 2002).
141 This tracks some of the same policy notions that inform absolute judicial immunity. See note 172 and accompanying text.
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judicial concerns.
142 We do not dispute these broad objections, but we do not think they carry much weight here. The separation-of-powers complaint seems no stronger for floodgates than it does for other doctrines, like abstention and forum non conveniens, where it invariably fails.143 The concern about Congress’s intent means nothing where there is no pertinent statute. And the worry about pretext seems inapposite where the court has little to hide.144 What makes this particular floodgates fear unconvincing, then, is something less grand and more particular. What makes it unconvincing is current law—pleading, discovery, and already-demanding substantive rules.
Modern pleading standards raise no small hurdle. In federal courts and many states, plaintiffs must now articulate “plausible” claims for legal remedy—not loose or emotional stories about how a judge somehow wronged them, but “sufficient factual matter” showing a plausible entitlement to judicial relief.145 Those who fail this requirement lose almost before their cases get started—and well before any costly discovery. And those who fail it dramatically may lose in another way too: frivolous filings can be sanctioned, often severely, under Rule 11146—and professional penalties may also strike lawyers who bring vexatious suits. These screens work to keep meritless claims largely off the courts’ dockets. And they will apply with particular vigor when suing courts. To plead a plausible claim for relief in a suit against the court, the plaintiff must do a great deal more than tell a tale of court-spurred legal unhappiness. She must, among other things, identify a particular court-made change in law and itemize its specific impact on her—something that, under modern pleading doctrine, very few plaintiffs will be able to do.
Some suits against courts will still navigate these hurdles. But even these seem likely to be manageable. Most will involve very little discovery, demand very little evidence, and ask fairly straightforward questions of law. A suit by a nonparty property owner, for example, will proceed on many undisputed facts—about what the property includes, who owns it, and what limits now apply. It will be clear
142 See, for example, Toby J. Stern, Federal Judges and Fearing the “Floodgates of Litigation,” 6 U Pa J Const L 377, 379 (2003).
143 But see Elizabeth T. Lear, Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of the Inherent Power, 91 Iowa L Rev 1147, 1148 (2006).
144 For a discussion of how pretext may be useful in the context of jurisdiction, see Frederic M. Bloom, Jurisdiction’s Noble Lie, 61 Stan L Rev 971, 1018–25 (2009).
145 See Ashcroft v Iqbal, 129 S Ct 1937, 1949 (2009).
146 FRCP 11(c) (granting the court discretion to impose sanctions for presenting claims that are not warranted by law).
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what evidence is necessary—surveys, deeds, photographs. And it will likewise be clear, to the property owner and the court she sues, what is (and is not) the relevant law. There may be hard questions of application, of sorting out relevant differences, and of meshing new facts with current law. But courts hearing these cases will not be swamped in big waves of unwieldy litigation.
147 And many of these cases, not least judicial takings cases, seem destined to lose.
It is not easy for owners to win takings cases. It will be no easier to win judicial takings cases, since all general defenses and other barriers to victory should apply.148 Owners will still file takings claims, now as before. But suing courts will change the relevant numbers somewhat less than Justice Breyer suspects: Plaintiffs will often fail to establish judicial takings, as in Stop the Beach itself. And potential plaintiffs hoping to find encouragement in others’ cases will often be disappointed, even if takings claims are all litigated as applied.149 Our invitation to sue courts may thus seem to swing the courthouse doors wide open. But it will function—in takings claims150 and perhaps in all others—more like a cracked side window.
States could also preempt such suits. They could change court-made rules by statute or create administrative mechanisms for resolving follow-on disputes. Courts could (re)change their rules too, an option that may seem unlikely given agency and political economy concerns. We discuss these next, asking if courts might be too quick or slow to change law when they internalize no costs. But the first fear is about floodgates. And suing courts, we think, will add a trickle, not a surge.
147 For party-plaintiffs, in fact, the posture is often just an appeal, so there is nothing new at all.
148 See, for example, Palazzolo v Rhode Island, 533 US 606, 619–21 (2001) (holding that a landowner must establish that a takings claim is ripe—meaning that the governmental authority has had an opportunity to decide and explain the reach of a regulation—before he is entitled to compensation); Penn Central, 438 US at 124 (explaining that evaluation of a takings claim requires balancing the government’s interest in the regulatory policy against the magnitude of the loss to the landowner).
149 Our fairly generous understanding of the effect of stare decisis changes little on this score.
150 It is conventional wisdom that traditional takings claims are vanishingly rare. Nevertheless, takings law still serves as a considerable constraint on government decision makers, like local land use officials, because the threat of takings litigation is often enough to win concessions. But that kind of strategic value is essentially nonexistent as applied against courts, who bear the costs of such claims very differently, if at all. See Part II.B. If anything, then, one suspects that judicial takings claims will be even less common than their traditional regulatory counterpart.
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2. Agency and political economy.
Agency and political economy present more substantial concerns. In our model, courts can award transition relief to those individuals sufficiently affected by adverse judicial decisions. But courts are not required to pay for this relief themselves, nor are they (in many jurisdictions) subject to direct democratic checks. Suing courts thus raises a profound agency problem: courts can pry open a state’s coffers and face little political reprisal when they do.
This is not true of legislatures, at least in theory. If a legislature enacts a regulation—say a zoning ordinance that effects a taking and thus requires compensation—the legislature bears the resulting political costs. Accountability for this ordinance may depend on imprecise political processes, and the extent of the actual costs may depend on peculiar political dynamics.151 But these political costs, big or little, still fall on and align with the very body that caused them—and that can respond if it wants. This is largely true of acts by government agencies as well, which can (at least, again, in theory) be disciplined by the legislative or executive branches of government. But it is not necessarily true of courts, where judicial independence permits judges to impose liability but remain largely insulated from resulting political costs.
We believe this concern is real. But, as with floodgates, we think it is also easy to overstate. For one, courts are less politically insulated than they may at first appear. In jurisdictions with judicial elections, judges may be politically accountable in the most direct and immediate way—and they may internalize political costs as much as legislators do. And in jurisdictions without such elections, judges are still not politically unfettered. Substantial bodies of scholarship demonstrate that even the highest American courts respond to political pressure, suggesting that judges are unlikely to ignore the political costs of being sued.152 Legislatures also hold an array of tools for disciplining judges—some of them formal (like withholding court funding) and some of them not (like threats to pack the bench). Courts, then, are very unlikely to ignore the costs they impose.
151 See Serkin, 81 NYU L Rev at 1644 (cited in note 113).
152 See, for example, Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus & Giroux 2009); Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 13–21 (Chicago 1991).
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Legislatures may also respond by changing substantive law. Say, counterfactually, that the Florida Supreme Court in Stop the Beach had in fact changed state law in a way that effected an unconstitutional taking and thus exposed the state to sweeping liability. One option is for the state to accept that liability and compensate the relevant owners. But another is for the Florida legislature to negate the court’s decision—to undo by statute what the court did by common law—and thus erase much of the state’s liability.
153 Some state legislatures may be disinclined to do this, or perhaps just too busy otherwise. Hoping for legislative response can be like waiting for Godot. But the fact that legislatures can act to limit state liability when courts change the law should mitigate the most significant political economy concerns.
So, too, should the fact that courts already open state coffers elsewhere. In educational reform litigation, tort claims against government actors, and even traditional regulatory takings litigation, state court rulings already impose significant financial liability on the government.154 Suing courts for legal change would thus be different, not in kind, but in slight degree. Some states have consented to these other suits by waiving their sovereign immunity, and these waivers may imbue a court’s decision to open state coffers with a kind of legislative assent.155 But these waivers, even where they exist, only confirm that courts often create costs that state budgets must cover. And state courts hardly read these waivers as an invitation to raid the state fisc. If the worry is that courts will be too willing to impose liability on the state, then, the concern seems overblown.
153 Under First English, 482 US at 318, the state might still be liable for compensation for the period between the decision and the new legislation, but even if liability does attach, the financial consequences are likely to be relatively minor.
154 See, for example, Rose v Council for Better Education, Inc, 790 SW2d 186, 203, 211 (Ky 1989) (holding that the state’s constitutional guarantee of an efficient system of common schools “requires the General Assembly to establish a system of common schools that provides an equal opportunity for children to have an adequate education”); Leandro v North Carolina, 488 SE2d 249, 254 (NC 1997) (interpreting the North Carolina constitution’s assurance of “a general and uniform system of free public schools” to work as “a right to a sound basic education”).
155 Many states seem to permit suits for inverse condemnation (and perhaps other things), not as a matter of statutory waiver, but as a matter of state constitutional law. See, for example, Board of Commissioners of Logan County v Adler, 194 P 621, 622–24 (Colo 1920) (en banc) (holding that the state constitution’s just-compensation provision itself overrides sovereign immunity). See also James E. Pfander, An Intermediate Solution to State Sovereign Immunity: Federal Appellate Court Review of State-Court Judgments after Seminole Tribe, 46 UCLA L Rev 161, 207 n 168 (1998) (“[S]tates often view just-compensation provisions in state constitutions as self-executing, thereby overcoming the doctrine of sovereign immunity.”).
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But this political economy question has a second, countervailing side. The worry here is not that courts will be too eager to impose liability, but too resistant, since suing courts might contradict courts’ self-image as expositors, not creators, of law. Common law courts often craft their opinions to make them appear inevitable, predestined outgrowths of existing precedent. Legal realists debunked this pretense many decades ago, but it remains stubbornly ingrained in the language and perhaps the mindsets of many state courts.
156 Admitting legal change would upset this mindset. And if courts refuse to acknowledge transitions, there seems little room for transition relief.
But courts do change the law—and are demonstrably capable of spotting these moments of transition. Crafting opinions often requires courts to search out the common law fountainhead of a doctrine, and it is often perfectly clear which opinion set the law on some new course. Even those with divergent views about the project of judicial interpretation or the path of the law’s development can generally agree about where a doctrine started and when a rule changed.
How judges will perceive these suits remains an open question.157 But note how the two chief pressures here seem to offset. One pressure suggests that courts will be unresponsive to political costs and matters of state liability—and thus too willing to change the law. The other suggests that courts will be loyal to an old common law vision and resentful of suits against them—and thus too restrained in driving legal change. We can only speculate about which is more likely, but we take some comfort in the counterpoint. The fact that these pressures compete provides more than a modicum of assurance that courts will be neither too willing nor too reluctant to change the law and award transition relief.158
156 See, for example, Kennerly v Town of Dallas, 2 SE2d 538, 540 (NC 1939) (“We only interpret the law as it is written.”). This sentiment is prevalent in federal courts as well. See, for example, Veprinsky v Fluor Daniel, Inc, 87 F3d 881, 897 (7th Cir 1996) (Manion concurring in part and dissenting in part) (“We only interpret the law.”).
157 It is not hard to imagine that, our model notwithstanding, suits against the court will carry some reputational cost. But if courts regard our suits as incompatible with common law decision making and detrimental to their professional status, they misread our proposal on both counts. Our suits imply that judges changed the law for the better, not worse.
158 There are other pressures, too. In any particular case, for example, judges might be motivated by naked empathy for particular parties. Or they may fall prey to the availability heuristic, assigning excessive weight to the effect of a decision on the specific parties before the court. But both of these concerns can cut multiple ways: judicial empathy could lead a judge to change an old rule that hurts a party or to sustain a rule that helps one. The parties before a court may be the best examples of the need for a particular change or the worst.
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A final agency worry concerns the reach of decisions as much as their results. The existence of suits against the courts might alter judicial behavior ex ante, changing the content of opinions as much as outcomes. Without suits against the court, judges might steer clear of sweeping legal changes, fearful that big alterations will interfere with peoples’ expectations. But with such suits, judges might feel emboldened to craft far-reaching decisions, confident that parties and nonparties will find avenues of redress. Even more, with such suits, a kind of skewed adversarialism may take root. In typical civil lawsuits, one party wins and the other loses—and so both have every reason to alert courts to the stakes of a case. Access to transition relief threatens to dilute that incentive, since neither party would necessarily lose. One party would receive a favorable ruling, the other some form of compensation. Parties might therefore litigate less vigorously,
159 and courts might grow less attentive to the costs they impose. Instead of creating greater accountability, then, suing courts may seem to subvert it, perversely allaying judicial responsibility by seeming to eliminate costs.
Both of these fears give us pause. And both reflect, in a way, a single concern about how courts take account of the costs they impose. But we think this worry undersells judges’ fiscal attentiveness and parties’ adversarial zeal. Parties in these cases will still advocate keenly for their first-choice outcomes, not merely for unlikely second-best compromises. So too will the state, which in our proposal ultimately foots the bill. And courts will still recognize that broad rulings will not be costless, but often quite the opposite for private individuals and for the state. We believe, then, that courts will be as vigilant in these suits as in others.
159 See Peñalver and Strahilevitz, 97 Cornell L Rev at *26 (cited in note 130). We accept their worry that parties, not courts, might alter their behavior in anticipation of suing a court, at least at the margin. The possibility of such a suit could, that is, reduce the expected costs of losing a case. But we are skeptical that this reduction will be significant, and we are therefore skeptical that the possibility of suing courts will significantly distort the adversarial process or parties’ incentives. Even in the most robust version of our model, the expected value of a suit against a court is certain to be exceedingly small—not least because such suits will be very hard to win. Any anticipated gain from such a suit must therefore be discounted to reflect the scant probability of success on the merits, as well as to capture the time and litigation costs associated with pursuing the claim. We think, then, that all parties will work as hard to win in the typical first case as in the challenging second. For an argument that compensation for takings may actually increase efficiency, see Blume and Rubinfeld, 72 Cal L Rev at 620–23 (cited in note 113) (arguing that compensation for regulatory takings may encourage inefficient government actions by buying off the opposition of adversely affected property owners).
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Courts change the law. Many of these courts keep an eye on doing justice in future cases,
160 and many deploy forward-looking legal arguments when discussing the shape and effect of the rules they make—sometimes in the guise of slippery slopes, other times merely to call attention to the stakes of a decision.161 We take no strong position on whether this practice is good or bad, though we believe that the law may be too sticky now—for all of these reasons identified above. Yet, in the end, our sense of the law’s current stickiness is beside the point. More important is the fact that suing courts will neither inhibit nor unfetter courts too significantly. This fact eases agency and political economy worries, and it gives us hope that suing courts might facilitate useful legal change.
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