Civil Rights Prof Blog

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.

New Article: Prof. Michael L. Wells (Georgia) on the "Saucier sequence" in Sec. 1983 litigation

A great new article on an especially interesting and timely topic, especially given that Justice Breyer and other federal judges have begun voicing their concerns about the impact of Saucier v. Katz (2001) in Morse v. Frederick (2007) and many other Sec. 1983 cases.

Michael L. Wells, The 'Order-of-Battle' in Constitutional Litigation, 60 SMU L. Rev. 1539 (2007). [L][W]

Excerpt:
... THIS Article examines and defends a procedural rule that figures prominently in constitutional tort litigation, has drawn sharp criticism from the federal judiciary, and seems to have lost the support of at least four sitting Supreme Court Justices. ...  In order to recover damages, plaintiffs must not only prove a constitutional violation but also fend off assertions of official immunity. In ruling on motions to dismiss the complaint and motions for summary judgment, a preliminary question is the sequence in which the two issues should be addressed-a problem the Justices call the "order-of-battle." . . .  Saucier's order-of-battle rule - requiring courts to resolve the substantive constitutional issue before the immunity question - may seem to be highly vulnerable to objections based on constitutional avoidance, as it flatly rejects the avoidance norm in favor of more rather than fewer rulings on constitutional issues. ... 

Why has an apparently routine policy, bearing on the internal dynamics of adjudication, spawned so much controversy? The answer is that appearances are deceptive. In reality, the order-of-battle rule has significant consequences for the role of the federal courts in adjudicating constitutional cases. Underneath the surface of this seemingly mundane issue simmers a clash between competing constitutional principles. On the one hand, absent the Saucier rule, lower courts may routinely incline to dispose of section 1983 cases without reaching the merits, to the detriment of the development of substantive constitutional law. On the other, the argument against Saucier relies on the Court's longstanding policy of avoiding unnecessary constitutional decisions. If the defendant wins on the official immunity issue, the argument goes, the plaintiff gets no damages whether or not the defendant committed a constitutional violation.  It follows that the case can often be resolved without reaching the constitutional question and with a lesser investment of judicial resources.

This Article examines the constitutional avoidance objection to Saucier and finds it wanting. . . . The aims of constitutional tort law include vindicating constitutional rights and deterring constitutional violations. Allowing lower courts discretion to decide on a case-by-case basis whether to apply the avoidance policy - as Justice Breyer proposes - would systematically undermine those goals. ...