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

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.

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