Disarming the Private Attorney General

Abstract

This article discusses how recent Supreme Court decisions have created a significant regulation-remedy gap in civil rights laws by critically undercutting one of the primary mechanisms Congress has used for enforcing civil rights: the private attorney general.

Board of Trustees v. Garrett offers a particularly striking example of the new "Eleventeenth" amendment. The Court offered a restrictive reading of congressional power under section 5 of the Fourteenth Amendment that left the Eleventh Amendment as a bar to private damages actions. At the same time, the Court revealed a preference for centralized enforcement that defies the central idea behind the private attorney general - that Congress might decide that decentralized enforcement better vindicates civil rights policies.

In Alexander v. Sandoval, the Court refused to find a private right of action to enforce Title VI regulations. By posing the relevant question as whether the section authorizing the regulations creates individual rights, rather than whether the regulations give rise to a private right of action, the Court ignored a central feature of the private attorney general: her authority to sue is at least partially derivative of the broader public interest in vindicating important policies. Sandoval reflects another striking feature of the current Court: its ahistorical method of interpreting statutes enacted during a period in which Congress and the Court saw full enforcement of broad policy goals as more important than formal political accountability for discrete enforcement decisions.

In Circuit City v. Adams, the Supreme Court upheld the use of compelled arbitration in cases involving employment rights. This, too, undercuts the concept of litigation which the private attorney general reflects: one in which courts not only resolve the particular dispute before them, but also give force to important public values. Lawsuits brought by private attorneys general not only bring a particular defendant into compliance but may also create binding precedent that will affect behavior more generally. Compelled arbitration undercuts this latter function. Here too, the Court mistakenly supposes that public agencies can provide a sufficient level of enforcement.

Finally, in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, the Court dramatically reduced the availability of attorney's fees. The Court rejected the generally accepted "catalyst" theory, and held a plaintiff cannot be a prevailing party unless she achieves a court-ordered change in the legal relationship between her and the defendant. It is not enough to show that her lawsuit caused the defendant to change its behavior. The Court downplayed the negative effects of its decision, suggesting that the danger of defendants' unilaterally precluding plaintiffs from getting fees was limited to a small class of cases. But the risk is particularly acute in suits seeking only equitable relief and in cases where the Eleventh Amendment prevents damages and plaintiffs can seek only prospective relief under Ex parte Young. Because these cases are especially likely to vindicate the public interest, the Court's theory countenances cutting off fees in the cases that particularly motivated Congress to provide fees.

Keywords: private attorney general, Eleventh Amendment, private right of action, attorneys fees, congressional enforcement power

JEL Classification: J7, K100, K410