Should Judges Use the Floodgates Argument? Policy vs. Principle in Civil Adjudication
Noam Gur (QMUL)
Litigants and judges make frequent reference to what has become known as the floodgates argument (hereafter: ‘FA’). However, considering the essence of FA – and, specifically, the fact that it is exogenous to the merits of the case – a series of questions arises: is the resort to FA compatible with the idea that like cases should be treated alike? Is it compatible with the claimant’s rights? And, ultimately, should judges resort to FA, and, if so, when and subject to what (if any) constraints? These questions are at the centre of this paper. My aim is to consider them with particular reference to relevant notions from Dworkin’s theory of adjudication.
The paper begins by juxtaposing FA and Dworkin’s theory of adjudication. It then considers Dworkin’s attempt to square FA with his account and rejects this attempt, finding that the two are irreconcilable. Against this background, the papers offers both theoretical observations as to Dworkin’s account and operative conclusions as to whether, and subject to what constraints, FA should feature in judicial decisions.