Law Commons^™

Preliminary Injunctions Prevail Through The Winter Of Buckhannon, Kaitlan Donahue

Northwestern University Law Review

The Civil Rights Attorney’s Fees Awards Act of 1976 allows courts to award attorneys’ fees to the “prevailing party” in any “action or proceeding” enforcing several civil rights-related statutes. Yet, this statute fails to define the term “prevailing party,” leaving the courts to define it over time. The Supreme Court’s piecemeal, vague definitions of “prevailing party” have only complicated the legal landscape and caused more uncertainty for potential plaintiffs and their prospective attorneys. Without the relief offered by recovery of attorneys’ fees, private litigants may be dissuaded from pursuing meritorious litigation due to overwhelming costs of representation, and attorneys may …

The Weaponization Of Attorney’S Fees In An Age Of Constitutional Warfare, Rebecca Aviel, Wiley Kersh

Sturm College of Law: Faculty Scholarship

If you 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 to insulate constitutionally questionable laws from judicial review, but some of the challenges you have sought to evade will manage to squeak through.

To fully disarm your opponents in an …

Perceptions Of Justice In Multidistrict Litigation: Voices From The Crowd, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup.

Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure …

Contracts: An Eight-Factor Test For Quantum Meruit Compensation For A Dismissed Contingency Fee Counsel—Faricy Law Firm, P.A. V. Api, Inc. Asbestos Settlement Trust, 912 N.W.2d 652 (Minn. 2018), Mitch Ohiwa

Mitchell Hamline Law Review

No abstract provided.

Standards Of Review In Texas, W. Wendell Hall, Ryan G. Anderson

St. Mary's Law Journal

Abstract forthcoming

Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney’S Fees Under Section 505 Of The Copyright Act, David E. Shipley

Journal of Intellectual Property Law

The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …

Credit Cards, Attorney's Fees, And The Putative Debtor: A Pyrrhic Victory? Putative Debtors May Win The Battle But Nevertheless Lose The War, Jennifer M. Smith

Maine Law Review

For decades, scholars have written about credit cards and attorney’s fees, but rarely together. This Article addresses the current financial crises of Americans, the credit card industry (including the Bankruptcy Abuse Prevention and Consumer Protection Act) and attorney’s fees—perhaps a unique combination. It is based upon an actual case that left the putative debtor in a worse financial crisis than before the lawsuit was filed. This Article addresses the current credit card industry and its detrimental impact on society, and it discusses the history and purpose of attorney’s fees, as well as the pitfalls in attorney’s fee legislation. It analyzes …

Supreme Court Supremacy In A Time Of Turmoil, Richard Henry Seamon

Articles

Last term's decision in James v. City of Boise encapsulates the current civil rights turmoil and the legal system's inadequate response to it. In James, the U.S. Supreme Court reversed a decision in which the Idaho Supreme Court (1) awarded attorney's fees against a civil rights plaintiff despite her credible claim of excessive police force and (2) denied that it was bound by U.S. Supreme Court decisions interpreting the federal statute authorizing the award. Although the Court in James reaffirmed the state courts' well-settled duty to obey the Court's decisions on federal law, this article shows that the duty rests …

Contract And Property Law—Fee-Shifting Statutes And Landlord-Tenant Law—A Call For The Repeal Of The English Rule "Loser Pays" System Regarding Contract Disputes And Its Effect On Low-Income Arkansas Tenants, Stephanie Mantell

University of Arkansas at Little Rock Law Review

No abstract provided.

Arkansas’S Trust Code And Trust Planning: A Ten-Year Perspective, Lynn Foster

University of Arkansas at Little Rock Law Review

In 2001, the Uniform Law Commission adopted the Uniform Trust Code, which regulates certain aspects of trusts. One impetus for the trust code was the ever-increasing popularity of revocable trusts as part of standard estate planning packages. Another was the fact that few states—including Arkansas—had well-developed common law trust rules, let alone any statutory trust codes. In 2005, the Arkansas legislature enacted a slightly modified version of the Uniform Trust Code (UTC), titled the Arkansas Trust Code (ATC). At that time, the University of Arkansas at Little Rock Law Review published my article summarizing the most important features of the …

Attorney’S Fees, Nominal Damages, And Section 1983 Litigation, Thomas A. Eaton, Michael Wells

Scholarly Works

Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.

We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented and the factual record is opaque regarding what and how …

Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney's Fees Under Section 505 Of The Copyright Act, David E. Shipley

Scholarly Works

The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …

Public Defenders And Appointed Counsel In Criminal Appeals: The Iowa Experience, Tyler J. Buller

The Journal of Appellate Practice and Process

No abstract provided.

2000 Survey Of Florida Law: Real Property, Ronald B. Brown, Joseph M. Grohman

Ronald Brown

No abstract provided.

Does Fraud Pay - An Empirical Analysis Of Attorney's Fees Provisions In Consumer Fraud Statutes , Debra Pogrund Stark, Jessica M. Choplin

Debra Pogrund Stark

The discretionary language in some consumer fraud statutes may cause consumers and lawyers to be less likely to decide to bring even a strong meritorious consumer fraud case, impeding the articulated legislative policy to promote the bringing of such cases. These statutes should be modified to eliminate such discretion by the courts. Part II of the Article sets out the economic dilemma a typical consumer faces in deciding whether to bring an action under the common law to be compensated for her losses when she has been defrauded (the "economic feasibility" issue). It then discusses the legislative response to the …

The Statute, The Constitution, The Caselaw, And The Appellate Lawyer As Sleuth, Leslie Hyman

The Journal of Appellate Practice and Process

No abstract provided.

Jay Ordan, Order On Defendants' Motion For Summary Judgment, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981, Eileen Kaufman

Touro Law Review

No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981, Leon Friedman

Touro Law Review

No abstract provided.

A Hybrid Methodology For Seeking Attorney's Fees In The Eastern District Of Virginia's Rocket Docket, Timothy D. Patterson

Law Student Publications

As the costs of litigation continue to increase, in large part due to overly broad discovery, the skirmishes in motions to compel are taking on new importance as part of the strategy. Attorneys in large law firms are even developing a subpractice area known as “discovery counsel,” particularly with the explosion of e-discovery over electronically stored information. It is for another article to discuss whether discovery should become so large or complex that practitioners can specialize in it. Thus, it will not come as a surprise to anyone that parallel to this issue is the much sought after, but often …

Court Of Appeals Of New York - Giaquinto V. Comm’R Of New York State Dep’T Of Health, Heather Wine

Touro Law Review

No abstract provided.

Making Plaintiffs Whole: A Tax Problem Of Interest, William E. Foster

William E Foster

Hardt V. Reliance Standard Life Insurance Company: Attorney's Fee Awards Under Erisa And The "Some Degree Of Success" Standard, Matthew D. Gimovsky

Journal of Health Care Law and Policy

No abstract provided.

Cost And Fee Allocation In Civil Procedure, James Maxeiner

All Faculty Scholarship

Court costs in American civil procedure are allocated to the loser ("loser pays") as elsewhere in the civilized world. As Theodor Sedgwick, America's first expert on damages opined, it is matter of inherent justice that the party found in the wrong should indemnify the party in the right for the expenses of litigation. Yet attorneys' fees are not allocated this way in the United States: they are allowed to fall on the party that incurs them (the ''American rule," better, the American practice). According to Albert Ehrenzweig, Austrian judge, emigre and then prominent American law professor, the American practice is …

Of Dinosaurs And Birds: The Second Circuit’S “Forum Rule” As An Unwarranted Attack On Plaintiffs’ Employment Discrimination Class Action Attorneys’ Fee Petitions, Patrick F. Madden, Shanon J. Carson

Patrick F. Madden

No abstract provided.

Fees On Fees In New York - Corporate Agents Beware, George Klidonas

George Klidonas

It is well settled law in New York that corporate officers and directors shall be indemnified for suits brought against them as agents of the corporation. The only limitation is that they are successful on the merits of the case and the corporate agent did not engage in conduct pursuant to bad faith. But what happens when that agent asks the corporation to indemnify them and the corporation refuses? According to a recent Court of Appeals case, if that agent files a subsequent indemnification suit, the agent is not entitled to legal fees for costs arising out of the subsequent …

Out With The New, In With The Old: The Importance Of Section 504 Of The Rehabilitation Act To Prisoners With Disabilities, Betsy Ginsberg

Fordham Urban Law Journal

People with disabilities are all too well represented in America’s prisons and are frequently not provided with the accommodations necessary to ensure their full participation in prison life. The Supreme Court’s 1997 pronouncement that Title II of the ADA applies to their claims of failure to accommodate and disability-based discrimination has been making its way through the prison grapevine (and hopefully the prison law libraries) over the last dozen years, inspiring prisoners, their advocates and the federal government to use this broad civil rights statute to enforce these rights. Their efforts have been thwarted to some extent by the states’ …

Does Fraud Pay - An Empirical Analysis Of Attorney's Fees Provisions In Consumer Fraud Statutes , Debra Pogrund Stark, Jessica M. Choplin

Cleveland State Law Review

The discretionary language in some consumer fraud statutes may cause consumers and lawyers to be less likely to decide to bring even a strong meritorious consumer fraud case, impeding the articulated legislative policy to promote the bringing of such cases. These statutes should be modified to eliminate such discretion by the courts. Part II of the Article sets out the economic dilemma a typical consumer faces in deciding whether to bring an action under the common law to be compensated for her losses when she has been defrauded (the "economic feasibility" issue). It then discusses the legislative response to the …

The Allocation Problem In Multiple-Claimant Representations, Paul H. Edelman, Richard A. Nagareda, Charles Silver

Vanderbilt Law School Faculty Publications

Multiple-claimant representations-classa ctions and other group lawsuits-pose two principal-agent problems: Shirking (failure to maximize the aggregate recovery) and misallocation (distribution of the aggregate recovery other than according to the relative value of claims). Clients have dealt with these problems separately, using contingent percentage fees to motivate lawyers to maximize the aggregate recovery and monitoring devices (disclosure requirements, client control rights, and third-party review) to encourage appropriate allocations. The scholarly literature has proceeded on the premise that monitoring devices are needed to police misallocations, because the fee calculus cannot do the entire job. This paper shows that this premise is mistaken …

Civil Practice And Procedure, John R. Walk, Michael R. Spitzer Ii

University of Richmond Law Review

This article will summarize recent developments of interest to practitioners handling civil cases in the courts of the Commonwealth of Virginia. Specifically included are relevant decisions of the Supreme Court of Virginia dating from opinions announced on June 10, 2004 to those announced on April 22, 2005; changes to the Rules of the Supreme Court of Virginia announced during the same time period; and legislation enacted by the Virginia General Assembly at its 2005 Session, effective July 1, 2005.