Civil Rights Attorney's Fees, the Catalyst Theory, and the Civil Rights Act of 2008

The Civil Rights Act of 2008, introduced last week in the Senate by Edward Kennedy (S. 2554) and in the House by John Lewis (H.R. 2159), includes a provision effectively overturning the Supreme Court's controversial decision in Buckhannon Board & Care Home v. W. Va. Department of Health and Services, 532 U.S. 598 (2001), which limited the ability of civil rights attorneys to receive attorney's fees awards under 42 U.S.C. § 1988.

Soon after the Buckhannon decision came out, I wrote an essay commenting on its likely impact for a symposium on the rule of law at the University of Maryland.  A few months ago, the UCLA Law Review published an important empirical study examining the effects of the catalyst theory's demise, which largely confirms my predictions and offers a much more detailed account of the harms produced by the Court's decision. Catherine R. Albiston and Laura Beth Nielson, The Procedural Attack on Civil Rights:  The Empirical Reality of Buckhannon for the Private Attorney General 54 UCLA L. Rev. 1087 (2007).  I'm encouraged to discover in the past few years more and more empirical studies of constitutional torts litigation, and this article in particular is highly recommended.

From the Introduction:

In 2001, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, the U.S. Supreme Court rejected the catalyst theory for recovery of attorney's fees in civil rights enforcement actions. In doing so, the Court dismissed concerns that plaintiffs with meritorious but expensive claims would be discouraged from bringing suit, finding these concerns "entirely speculative and unsupported by any empirical evidence." This Article presents original data from a national survey of more than two hundred public interest organizations that call into question the Court's empirical assumptions. These data indicate that organizations that take on paradigmatic public interest cases, such as class actions seeking injunctive relief against government actors, are the most likely to be negatively affected by Buckhannon. In addition, our respondents report that Buckhannon encourages "strategic capitulation," makes settlement more difficult, and discourages attorneys from representing civil rights plaintiffs. We argue that these far-reaching effects herald a shift away from private rights enforcement toward more government power both to resist rights claims and to control the meaning of civil rights.