Current Proposals in Congress to Limit and to Bar Court-Awarded Attorney’s Fees in Public Interest Litigation


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.

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