Abstract

http://ssrn.com/abstract=937114
 
 

Citations (2)



 
 

Footnotes (193)



 


 



The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General


Catherine Albiston


University of California, Berkeley - School of Law

Laura Beth Nielsen


American Bar Foundation; Northwestern University - Department of Sociology


University of California, Los Angeles Law Review, June 2007
UC Berkeley Public Law Research Paper No. 937114

Abstract:     
In 2001, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court rejected 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.

Number of Pages in PDF File: 48

Keywords: public interest litigation, attorney's fees, private attorney general, empirical, Buckhannon

Accepted Paper Series


Download This Paper

Date posted: October 13, 2006 ; Last revised: July 16, 2012

Suggested Citation

Albiston, Catherine and Nielsen, Laura Beth, The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General. University of California, Los Angeles Law Review, June 2007; UC Berkeley Public Law Research Paper No. 937114. Available at SSRN: http://ssrn.com/abstract=937114

Contact Information

Catherine Albiston (Contact Author)
University of California, Berkeley - School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
Laura Beth Nielsen
American Bar Foundation ( email )
750 N. Lake Shore Drive
Chicago, IL 60611
United States
312-988-6574 (Phone)
312-988-6579 (Fax)
Northwestern University - Department of Sociology ( email )
1810 Chicago Ave
Evanston, IL 60208
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,021
Downloads: 197
Download Rank: 89,848
Citations:  2
Footnotes:  193

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.422 seconds