The Weaponization of Attorney's Fees in an Age of Constitutional Warfare

79 Pages Posted: 18 Oct 2022 Last revised: 7 Nov 2022

See all articles by Rebecca Aviel

Rebecca Aviel

University of Denver Sturm College of Law

Wiley Kersh

University of Denver Sturm College of Law

Date Written: October 17, 2022

Abstract

If you simply want to win battles in the culture war, you enact legislation that regulates firearms, prohibits abortions, restricts discussion of critical race theory, or advances whatever other substantive policy preferences represent a victory for your side. But to win the war decisively with an incapacitating strike, you make it as difficult as possible for your adversaries to challenge those laws in court. Clever deployment of justiciability doctrines will help insulate constitutionally questionable laws from judicial review, but some of the challenges you’ve sought to evade will manage to squeak through. To fully disarm your opponents in an age of cultural and constitutional warfare, you must cut off their access to counsel. Here’s how to do it in three easy steps: (1) delineate an entire area of law, such as abortion, in which proponents of the state-favored view may obtain attorney’s fees upon prevailing in litigation while proponents of the opposing view may not; (2) impose joint and several liability on the attorneys for the disfavored side, so that attorneys cannot bring challenges to state law without being personally on the hook for what could amount to millions of dollars in the opposing party’s legal fees; and (3) define “prevailing party” so broadly that this shared liability is triggered by the dismissal of even a single claim. This, in brief, is what the Texas legislature did in SB 8, the Fetal Heartbeat Law, pioneering a model that several other states have now followed. The extraordinary nature of this scheme has been overshadowed by both the private enforcement mechanism at the core of SB 8, intentionally designed to evade judicial review, and by the Supreme Court’s decision to overrule Roe v. Wade, ending constitutional protection for the right to terminate a pregnancy. As this article shows, it would be a grave mistake to view SB 8’s weaponization of attorney fees as something that’s no longer relevant. First, the end of Roe hardly means an end to abortion litigation. Quite the contrary – it immediately ushered in a new era of legal challenges, for which Texas and its imitators have already stacked the deck as described above. But perhaps even more significantly, there’s no logical reason that the weaponization of attorney’s fees is limited to the abortion context, or to red states for that matter. California has already refashioned the Texas Three Step to deter Second Amendment challenges to its new firearm law, implementing an identical attorney fee regime for very different ideological purposes. And why should it stop there? Why can’t all state legislatures insulate their most troubling laws from judicial scrutiny simply by making it prohibitively risky for attorneys to challenge them? This Article reveals that the largely unnoticed attorney fee scheme woven through SB 8, imposing one-sided fee shifting with liability for the attorneys of disfavored litigants, is unprecedented and deeply threatening to whatever is left in our legal culture of notions of fair play, access to courts, and legitimate contestation of bitterly disputed issues. Accepting its proliferation will result in a profound aggrandizement of state power that is inconsistent with federalism and separation of powers principles as well as due process and First Amendment rights.

Keywords: Constitutional Law, Attorney Fees, Federalism, Separation of Powers, First Amendment, Abortion, Litigation Process, Second Amendment, Due Process

JEL Classification: K41

Suggested Citation

Aviel, Rebecca and Kersh, Wiley, The Weaponization of Attorney's Fees in an Age of Constitutional Warfare (October 17, 2022). Yale Law Journal, Forthcoming, U Denver Legal Studies Research Paper No. 22-18, Available at SSRN: https://ssrn.com/abstract=4250513

Rebecca Aviel (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Wiley Kersh

University of Denver Sturm College of Law

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