Floodgates of litigation - Essay Example

Floodgates of litigation The issue of floodgates of litigation has consistently appeared in the courts, especially when it comesto certain cases which seem to create a path through which more cases can be filed to the courts, based on a determination that had not previously been done. Thus, there is some eminent fear that giving certain ruling in some cases has the likelihood of opening floodgates of litigation, which may overwhelm the courts and thus affects their efficiency, owing to the fact that there are still many cases and issues pending in courts, which have not been resolved yet1. However, this issue is controversial, since there is a feeling that; considering the aspect of opening floodgates of litigation while making legal determinations is unjustifiable. This is because, such a consideration is not part of the interpretation of the law, which is the prime function of the courts that separates them from the other arms of the government, so that they can act independently in interpreting the law2. Therefore, this discussion seeks to investigate why courts are concerned about floodgates of litigation, with a view to assessing where within the tort of Negligence, an evidence of this concern can be identified. The advocates of the concept of the floodgates of litigation argues that if a court takes certain course of action, it is likely to lead to a dramatic increase in legal litigations, which may affect the courts ability to discharge its duties. This is because; the court may not even be able to address other cases effectively due to the unmanageable number of litigations3. On the other hand, the critics of the concept of floodgates of litigation observes that making such a consideration while giving a legal determination is against the mandate of the courts, since there is no evident principle that provides for the courts to consider workload as a factor, while making a legal determination2. Nevertheless, for the advocates of the application of the concept of floodgates of litigation, there are three major circumstances when the courts might be compelled to invoke this concept, in the best interest of preserving the effectiveness and efficiency of the operations of the courts. First, the advocates observe that it is extremely important for the court to invoke this concept, where the proposed rule is overly confusing. There are certain clauses of the law that seem to be so much ambiguous, so that their truthful interpretation becomes impossible4. Such clauses are vivid in their definition of terms, or provision of remedies, that the judges cannot apply them with certainty while determining cases. In the cases of such confusing rules, there are chances that giving a certain interpretation of such clauses would pave a way for further parallel interpretations, which would see many cases introduced to the courts, based on the same or the parallel interpretations made5. In this respect, it becomes necessary to invoke the concept of floodgates of litigation by the judges, so that they can prevent the occurrence of parallel interpretations and the consequent dramatic increase in the number of cases filed with the courts, based on such interpretations. It is upon this observation that a judge can look into the effect of giving a certain legal determination, and thus decide to forfeit it, based on the fact that it may lead to the introduction of an overwhelming number of cases to the courts. The second circumstance, under which the courts may be compelled to invoke the concept of floodgates of litigation, is under situation s where the provisions of the law are overly broad6. There are certain clauses of the law that can be interpreted so widely, that the interpretation will encompass some elements that contrasts previous interpretations, or gives new interpretations of the law that had not been applied previously. In case of an overly broad clause which leads to a contrasted interpretation with preceding legal interpretations, chances are high that the parties involved in such cases can seek to file the same cases again, seeking the application of the new interpretation, which contrasts the interpretation under which the determination of such cases were done3. On the other hand, an overly broad interpretation that gives a new interpretation of certain clauses of law that had not been applied before, might lead to a floodgate of litigations, since the new interpretation might open an avenue that gives hope for obtaining favorable verdicts in such litigations. Thus, in circumstances under which the clauses of the law are overly broad, such that they can lead to contrasting interpretations with the precedence or completely new interpretations that had not been made before, it becomes necessary for the courts to invoke the concept of floodgates of litigation, to prevent an overwhelming filing of cases with the courts, which may affect their ability to deliver effectively9. The third circumstance, under which the courts may invoke the concept of floodgates of litigation, is under circumstances where the problem it addresses is extremely common. There are certain issues that keeps reoccurring in the courts, based on their commonality in the society. Such cases have been determined based on certain precedence that is applicable to the situations of the cases, and thus it would be extremely difficult to deviate from the laws of precedence that had been applied before. If a court decides for one reason or another to give a different interpretation of the principles and precedence that have been applied in such cases, then, an avenue of floodgates of litigation would be opened, since such cases are common and keeps reoccurring to the courts10. This would mean that the courts will be overwhelmed by the reoccurrence of the common cases, to such an extent that it becomes difficult to address other cases, which are also within its mandates4. Thus, to prevent such an occurrence, the courts can invoke the concept of floodgates of litigation, which will preclude a court from issuing alternative or new interpretations to rules applicable in common cases, to safeguard the dramatic increase in the number of cases that would be filed with the courts, following such new or alternative interpretations11. Judicial economy is yet another aspect that has been associated with the concept of floodgates of litigation. The relationship established here by the proponents of the principle of floodgates of litigation is that; the increase in the number of cases that can arise out of the failure by the judges to apply this principle, will impact on the effectiveness of the courts. The failure to apply the principle while determining cases would mean the need to hire even more judges, so that they can assist in addressing the cases that will flood the judiciary12. However, hiring of such judges comes with its own negative implications, since it adds on the social and economic costs, which impacts directly on the society. Therefore, any failure by the judges to consider the implications of floodgates of litigation risks putting the judiciary at a higher peril of undermining judicial quality13. Therefore, any consideration that takes the form of enhancing judicial economy, and preserving the efficient and effective operations of the courts, is a legitimate consideration, which no court should shy away from making. This basis have been criticized by those opposed to the application of the principle of floodgates of litigation, who observes that invoking such a principle limits the rightful dispensation of the duties of the courts, since the application of the principle, results to prudential self-restraint of the courts, to operate with their comfort zones, while shunning away the necessity to interpret the law prudently, which is their fundamental reason for existence. The critics observe that it is a functional restraint of the courts, which creates an impression that the application of decisions that are right by the courts leads to a high burden of cases, which in turn impairs the ability of the courts to function5. Thus, the courts opts to apply rulings and legal interpretations that are popular and non-controversial, just to avoid being overwhelmed by the legal litigations that might arise out of issuing the right judgment, at the expense of its rightful duty of conferring justice to the parties involved in a case14. Thus, the critics of the principle of floodgates of litigation argue that, it as a move by the courts to evade from issuing the right judgments and determinations as informed by the correct interpretation of the law, an aspect that puts into question the fundamental principle that guide the operation of the courts15. While the law provides for the courts as the interpreters of law, whose mandate is to confer justice to the parties involved in a dispute, the application of the principle of floodgates of litigation appears to change the priority of the courts, to apply workload as the fundamental principle that influences their determination16. The reversal of the courts fundamental priority, results to the application of the principle of justice occurring at a distant second, after the principle of workload concerns, for the courts. The other argument that is given against invoking the principle of floodgates of litigation is the legality and constitutionality of the practice. The arguments hold that affecting a ruling informed by the principle of floodgates of litigation goes against the legality and constitutionality of judicial mandate, since the judiciary is constitutionally mandated with the role of interpreting and applying the law, and no other interest should surpass the interest of constitutional interpretation and application of the law6. The application of the principle of floodgates of litigation is also an insinuation that the courts can opt not to deliver justice, rather choosing the type of cases the courts should handle and the ones they should not, by offering interpretations and rulings that limits the nature and number of cases. When the judiciary has the powers to determine the cases that it can addresses, and the ones it can block through the application of the principle of floodgates of litigation, then, the capacity of the judiciary to deliver justice is effectively undermined. Judiciary is meant to be the arbitrating body, which should hear all cases and determine them, based on the effective interpretation and application of the law. If this position is compromised, then it becomes apparent that there is the danger of the judiciary becoming the sole determinant of the cases that should be heard, and the once that the society should not present, based on the fact that their presentation to the courts will overburden it with more workloads17. Therefore, much as the judiciary should be allowed to control its economy rest the social costs to the society becomes unbearable, according to the critics of the application of the principle of floodgates of litigation by the courts, the principle is more prohibitive that facilitative of the jurisprudence . In the tort of negligence, there is sufficient evidence that the issue of floodgates of litigation is a concern. While the law of tort and the liability of negligence are determined based on the rule of law, the policy operating behind the determination has always been an issue of concern18. This is because, a court of law might find that all the facts point to the fact that, the defendant in a certain tort case was negligent when committing the action that caused damage to the plaintiff, but the ruling of the case, based on the issue of the policies applicable might determine that the defendant was not liable19. In such a case, the facts might show that an individual was involved negligently in malicious damage of property, according to the facts of the case, but hold the individual as not liable through the application of determinant policies, such as the consideration that the damage was very remote to be considered substantial7. For example, should a visitor to a certain home get infuriated by the host and bash a glass he was using to drink water against the wall, and then walks away, the court might find the visitor culpable for the damage of property according to the rules and facts of the law, but still hold him not liable, through the application of a determinant policy that considers the value involved as too remote, and thus charging such an individual will be opening a door for floodgates of litigation, which are of the same nature20. This way, the principle of floodgates of litigation evidently affects the law of tort negligence, and thus raises a concern. Bibliography 1Australia. Standing in Public Interest Litigation. Canberra: Government Printer, 1986. 2Brown, William H. Sexual Harassment: Opening the Floodgates of Litigation. 1982. 3Cane, Peter. The Anatomy of Tort Law. Oxford: Hart Publ, 1997. 4Cooke, John. Law of Tort. Harlow: Pearson Longman, 2007. 5Epstein, Adam. Sports Law. Mason, OH: South-Western, 2013. 6Freeman, Michael D. A. Law and Neuroscience: Current Legal Issues 2010. Oxford: Oxford University Press, 2011. 7Giliker, Paula, and Silas Beckwith. Tort Law. London: Sweet & Maxwell, 2000. 8Hodgson, John S., Hodgson-Lewthwaite, and John Lewthwaite. Tort Law Textbook. Oxford [u.a.]: Oxford Univ. Press, 2007. 9Lunney, Mark, and Ken Oliphant. Tort Law: Text and Materials. Oxford: Oxford University Press, 2008. Professional Negligence. London, England: Cass, 1985. 10Magnus, Ulrich, M. Marti?n-Casals, and W. H. van Boom. Unification of Tort Law: Contributory Negligence. New York: Kluwer Law International, 2003. 11McCarran, Pat. Administrative Procedure Act: Legislative History, 79th Congress, 1944-46. Washington [D.C.]: U.S. G.P.O., 1946. 12Rickett, Charles E. F. International Perspectives on Consumers' Access to Justice. Cambridge [u.a.]: Cambridge Univ. Press, 2003. 13Schwartz, Bernard. French Administrative Law and the Common-Law World. Ann Arbor, Mich: University Microfilms International, 1980. 14Stremlau, Duane L. Tort Law: Negligence and Liability in Physical Education with Reference to Higher Education. Madison, Wis: University of Wisconsin, 1976. 15Symes, Tom, Mike Renger, and Nicola Paradise. Environmental Litigation. London: Cameron May Ltd, n.d. 16Tesler, Pauline H. Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation. Chicago, Ill: Section of Family Law, American Bar Association, 2001. 17Tulane Law School. Tulane Journal of International and Comparative Law. New Orleans, La: Published and edited by students of the Tulane University School of Law, 1993. 18United States. Hearings Before ... The Committee on the Judiciary, House of Representatives, Seventy-Ninth Congress, First Session. Washington: U. S. Govt, 1945. 19United States. [Administrative Procedure Act. House and Senate Drafts and Reports.]. n.d. 20West Group, and American Bar Association. Common Law, Common Values, Common Rights: Essays on Our Common Heritage. [St. Paul, Minn.]: Published courtesy of West Group as a collaborative effort with the American Bar Association, 2000. Read More