Attorney's Fees in Civil Rights Cases - October 2009 Term

11 Pages Posted: 14 Mar 2014

See all articles by Martin A. Schwartz

Martin A. Schwartz

Touro College - Jacob D. Fuchsberg Law Center

Date Written: 2011


About thirty-five years ago, Congress determined that the effective enforcement of federal civil rights statutes is largely dependent upon private parties bringing lawsuits to enforce their rights under civil rights provisions. At the same time, Congress understood that private parties frequently do not have the funds to hire private attorneys to bring civil rights actions. As a result, Congress over the years enacted various fee-shifting statutes, which authorize a court to award attorney's fees to a “prevailing party.” Thus, a court may allow a prevailing plaintiff to recover attorney's fees from the defendant. This is where the phrase “fee-shifting” comes from; meaning that if the plaintiff prevails, liability for the attorney's fees will shift from the plaintiff to the defendant.

Because the stakes are frequently high and the issues difficult, fee-shifting statutes have and will continue to generate a tremendous amount of litigation. The fiscal incentive provided by federal fee-shifting statutes gives attorneys a personal stake in the outcome of their cases and, in so doing, serves to promote rigorous enforcement of federal civil rights laws. Overall, there are about 150 federal fee-shifting statutes. These statutes include civil rights fee-shifting statutes, environmental statutes, fair housing statutes, consumer legislation, consumer lending, and ERISA. This Article discusses the Civil Rights Attorney's Fee Award Act of 1976, which is the most significant federal fee-shifting statute. The Article also discusses an important case concerning statutory attorney's fees in civil rights cases, Perdue v. Kenny A. ex rel Winn, decided by the Supreme Court in the October 2009 Term. This decision directly impacts the determination of fee applications in federal civil rights cases in the future.

Keywords: attorney's fees, fee-shifting statutes, lodestar calculation, Civil Rights Attorney's Fee Act of 1976, civil rights litigation, United States Supreme Court, Perdue v. Kenny A. ex rel. Winn

Suggested Citation

Schwartz, Martin A., Attorney's Fees in Civil Rights Cases - October 2009 Term (2011). 27 Touro L. Rev. 113 (2011), Touro Law Center Legal Studies Research Paper Series, Available at SSRN:

Martin A. Schwartz (Contact Author)

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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