Tuesday, February 13, 2007

Albiston and Nielsen on Federal Fee-Shifting and the Private AG Policy

Posted by Alan Childress
Catherine Albiston (Cal. Berkeley--Law, and its JSP doctoral program), left, and Laura Beth Nielsen Albiston (ABF and Northwestern U.--Sociology), right,  have posted to SSRN's Law & Soc'y: Legal Profession their empirical study of attorneys' fees and fee-shifting in light of recent Supreme Court cutbacks on incentivizing civil rights representations under a "private attorney general" rationale.  It is called "The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General."  It will appear this year in the UCLA Law Review.  [Bill Henderson at ELS blog also blogged on the importance of this research here.] Here is their abstract:

In 2001, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court rejectedNielsen2 the catalyst theory for recovery of attorneys' 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 200 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 and toward more government power, both to resist rights claims and to control the meaning of civil rights.


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