Current Proposals in Congress to Limit and to Bar Court-Awarded Attorney’s Fees in Public Interest Litigation
Introduction
One of the long-standing exceptions to the American rule against fee shifting is the authorization of court-awarded fees pursuant to statute. Today, this statutory exception is overwhelmingly the major exception, particularly in the federal arena where nearly 200 federal statutes now authorize courts to award attorneys’ fees.
Although Congress has enacted fee-shifting statutes which apply to various traditional areas of commercial litigation, many of these statutes are either relatively archaic or rarely invoked. More frequently invoked are the fee-shifting statutes applicable to public interest litigation in fields such as environmental law, consumer law, and traditional civil rights law. The decade-old Civil Rights Attorney’s Fees Awards Act of 197610 (the “Fees Act”) is unquestionably the most frequently invoked.
Congress enacted the Fees Act to “insure that reasonable fees are awarded to attract competent counsel in cases involving civil and constitutional rights,” and thereby “to promote the enforcement of the Federal civil rights acts.” In so doing, it inadvertently spawned a deluge of ancillary litigation over fees. Whether this increased litigation over fees has been caused either by the breadth of the Fees Act, or by Congress’ provision of standards favorable to prevailing plaintiffs coupled with losing defendants’ unwilling-ness to pay fees to counsel for prevailing plaintiffs, fee litigation has become burdensome for both plaintiffs’ counsel and the courts.
Suggested Reading
#SayHerName: Racial Profiling and Police Violence Against Black Women
Andrea J. Ritchie{{Andrea J. Ritchie is a civil rights attorney who has led groundbreaking research, litigation, and advocacy efforts to challenge profiling, policing, and physical and sexual violence by law enforcement against women, girls and LGBTQ people of color for
My Twenty-Twos: Mentoring the Young Men Emerging Community
The kid’s name was Lil’ Yo—well, that’s what all his little buddies called him—and immediately his presence snagged my attention.
Don't Let Trump-- or Biden-- Distract from the Real Victims of the Espionage Act
During the First World War, the Espionage Act was overwhelmingly used for the prosecution of dissidents, the Black press, radical labor, and socialists.
Labor Law and the NLRB: Friend or Foe to Labor and Non-Union Workers?
Wilma B. Liebman{{Former Member and Chairman, National Labor Relations Board, 1997-2011; visiting distinguished scholar Rutgers University School of Management and Labor Relations 2015-17; adjunct faculty, NYU Law School, spring 2015 and 2016. This article is based on remarks at the