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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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BRIDGING THE GAP BETWEEN CONGRESS AND THE SUPREME COURT: INTEREST GROUPS AND THE EROSION OF THE AMERICAN RULE GOVERNING AWARDS OF ATTORNEYS' FEES
Published in 1985. Western Political Quarterly. 38 (2): 238-249. (Revised version of a paper delivered at the 1983 meeting of the American Political Science Association.)

Karen O'Connor
Lee Epstein

Introduction

Erosion of the American rule governing awards of attorneys' fees is an important legal-political development. For more than 170 years, Congress and the Supreme Court clung to the view that prevailing parties were not entitled to recover their costs or attorneys' fees when they successfully advances their claims on the merits. In 1964 this situation changed dramatically; passage of Title II of the Civil Rights Act, coupled with a subsequent expansive Supreme Court interpretation of that provision, quickly led to the erosion of the rule.

In this paper we attempt to examine the demise of this long standing public policy and the consequences of this change. The importance of such an analysis lies in the fact that (1) it is an issue that has never been studies by political scientists, and it (2) is an issue of paramount interest to all of the parties involved in this controversy: interest groups, Congress, and the courts. Interest groups litigating in the public interest depend on attorneys' fees awards for a substantial proportion of their operating expenses. Congress was especially concerned with implementation of civil rights laws and with appeasing "friendly" groups, and the Supreme Court, which was inundated with public interest lawsuits, quickly came to view attorneys' fees provisions as impediments to the orderly administration of justice.

Click here for the article (.pdf).
Click here for the conference paper (.pdf).