Download this Paper Open PDF in Browser

Thurgood Marshall, Meet Adam Smith: How Fee-Shifting Statutes Provide a Market-Based System for Promoting Access to Justice (Though Some Judges Don't Get it)

22 Pages Posted: 27 May 2009 Last revised: 15 Jun 2009

Samuel R. Bagenstos

University of Michigan Law School


Statutes shifting responsibility for plaintiffs' attorneys' fees to unsuccessful defendants are central to ensuring access to justice for people of limited means in civil rights, environmental, and other public interest cases. In these classes of cases, the fee-shifting strategy offers a number of distinct advantages over access-to-justice strategies that involve public funding or public employment of lawyers for those who are less well off. Unlike those strategies, fee shifting incorporates a substantial market element: Because lawyers in fee-shifting cases get paid only when they win, they have an incentive to find and bring cases in which a court is likely to conclude that someone’s legal rights were actually violated. Fee shifting is also usefully decentralized. A fee-shifting system equally subsidizes litigation for any violation of legal rights covered by a fee-shifting statute - whether or not the particular client or case is likely to be politically popular. And unlike systems of public financing of litigation - whose costs are borne by taxpayers generally - fee-shifting statutes place the burden of financing access to justice squarely on those entities that have actually violated the law (at least in the first instance). The fee-shifting system thus seems to allocate its costs more fairly than the alternatives, and it gives potential defendants an additional incentive to comply with the law.

It is a familiar point, traceable to Adam Smith, that markets work not by fighting against private interests but by harnessing the pursuit of those interests in a way that achieves important public goods. When it comes to fee-shifting statutes, however, many judges - perhaps, especially, conservative judges - seem to forget the point. Judicial discourse in fee-shifting cases focuses, to a great extent, on assessments of the pecuniary motivations of plaintiffs’ lawyers. Driven by the view that civil rights litigation is in the nature of charity or volunteer work, judges have elaborated doctrinal rules that presume that civil rights lawyers ought not care whether or how much they get paid, and they often vigorously police fee requests for signs that plaintiffs' counsel is getting greedy.

Both of these tendencies were prominently on display in a major recent case decided by the Eleventh Circuit - Kenny A. v. Perdue - a case in which the Supreme Court has granted certiorari. In that case, the court of appeals upheld a substantial fee award to plaintiffs who obtained a very favorable consent decree in a large class action challenging inadequate foster child services in two Georgia counties. But the judge who wrote the panel’s opinion (Judge Edward Carnes) and another judge who joined him in dissenting from the court’s denial of en banc rehearing (Judge Gerald Bard Tjoflat) expressed powerful doubts that the law should properly be read to authorize the fee award. Judge Carnes went so far as to write what was essentially a petition for certiorari as his dissent from denial of rehearing en banc. Informed observers were not surprised when the Supreme Court agreed to hear the case. Both Judge Tjoflat's and Judge Carnes's Kenny A. opinions seemed to rest on the view that the plaintiffs' lawyers in that case were greedy people who sought to line their pockets by stretching the bounds of the law. This brief essay, prepared for an ABA symposium on access to justice, examines the arguments of Judges Tjoflat and Carnes as an example of the widespread judicial view that civil rights law should properly be a charitable, not a fully remunerative, endeavor. The essay critically examines the two key arguments that underlay both Judge Tjoflat's and Judge Carnes's opinions in the Kenny A. case and shows that they can make sense only if we view civil rights litigation as essentially charitable work - a view that would substantially diminish the enforcement of civil rights laws.

Suggested Citation

Bagenstos, Samuel R., Thurgood Marshall, Meet Adam Smith: How Fee-Shifting Statutes Provide a Market-Based System for Promoting Access to Justice (Though Some Judges Don't Get it). Fordham Urban Law Journal, Vol. 37, 2009; U of Michigan Law & Economics, Olin Working Paper No. 09-010; U of Michigan Public Law Working Paper No. 150; Washington U. School of Law Working Paper No. 09-06-01. Available at SSRN:

Samuel R. Bagenstos (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States


Paper statistics

Abstract Views