ROUSE.FINAL

8/4/2010 10:26 AM

BATTLING FOR ATTORNEYS‘ FEES: THE SUBTLE INFLUENCE OF
―CONSERVATISM‖ IN 42 U.S.C. § 1988
Layne Rouse*

I.
II.

III.

IV.

V.

INTRODUCTION .......................................................................973
THE BACKGROUND OF 42 U.S.C. § 1988 ................................975
A. The History and Analysis of § 1988 ................................975
B. The Purpose of § 1988 ....................................................978
AN ANTI-ENFORCEMENT INFLUENCE .....................................982
A. A Direct Influence: Activism Among Lower Courts .......982
B. Balancing the Anti-Enforcement Influence .....................985
C. The Reasonableness Analysis and The Anti-Plaintiff
Development ....................................................................989
1. A Balance Approach in the Reasonableness
Analysis: Blanchard’s Disincentive ..........................989
2. The Reasonableness Analysis: Hensley Factors of
Reduction ...................................................................990
3. A Segregated Purpose in the Reasonableness
Analysis: Farrar‘s Windfall .....................................994
D. Segregated Purpose Applied ...........................................996
A BURDEN-SHIFTING ANALYSIS .............................................999
A. The Burden-Shifting Analysis ..........................................999
B. Support for a Burden-Shifting Analysis ........................1004
CONCLUSION.........................................................................1006
I.

INTRODUCTION

Since 1976, district courts have had the authority to award attorneys‘
fees to prevailing parties in civil rights litigation under 42 U.S.C. § 1988.1
*Candidate for Juris Doctor, Baylor University School of Law, April 2008; B.S.,
Communication, summa cum laude, Abilene Christian University, 2005.
1
See 42 U.S.C. § 1988 (2006) (allowing recovery of attorney fees for cases arising under 42
U.S.C. §§ 1981–83, 1985, 1986, 2000 (title VI of the Civil Rights Act of 1964), the Religious
Freedom Restoration Act of 1993, the Religious Land Use and Institutionalized Persons Act of
2000, and section 40302 of the Violence Against Women Act of 1994); Hensley v. Eckerhart, 461

ROUSE.FINAL

974

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

Although the basic framework of § 1988 is well-settled, discussion of its
application remains relevant today because § 1988 is a frequent topic of
debate and litigation.2 For instance, the House in the 109th Congress
recently amended § 1988 to limit the potential class of plaintiffs who could
recover attorneys‘ fees under § 1988.3 The bill demonstrates the unending
conflict between the goals of a pro-establishment, anti-enforcement
ideology and those of predominantly pro-plaintiff statutes such as § 1988.4
This conflict becomes particularly pointed in the courtroom, where a
lower court‘s facially reasonable interpretation and application of the law
produces net results that are in apparent conflict with the purpose of the
statute as a whole.5 These countervailing results should only be justified if
the lower court‘s analysis is tailored to support the purpose of the statute.6
While § 1988 grants the lower court broad discretion to determine a proper
fee amount,7 the lower courts‘ flexibility introduces the possibility for a
countervailing, anti-establishment ideology to unduly influence the
determination of a fee request under § 1988.8 To avoid these influences, the
law should provide the lower courts with procedures to ensure the statute‘s
intended purpose is upheld when lower courts apply the statute to a
particular fact situation.9 Not only does the law fail to provide these
procedures, arguably, the law provides for the opposite: a procedure that
encourages lower courts to arrive at net results contrary to the intent of §

U.S. 424, 433 n.7 (1983) (stating Congress intended for the standards of awarding fees in § 1988
to be the same as Title II and VII of the Civil Rights Act of 1964).
2
See generally, e.g., Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455
(2006); Carson v. Billings Police Dep't, 470 F.3d 889 (9th Cir. 2006); Skokos v. Rhoades, 440
F.3d 957 (8th Cir. 2006).
3
See H.R. 2679, 109th Cong, § 2, (2006), available at http://thomas.loc.gov (limiting the
potential class of plaintiffs suing certain named groups in the amendment).
4
Compare id. with infra Part II.B.
5
See infra Part III.D.
6
See United States v. Kimble Foods, Inc., 440 U.S. 715, 738 (1979) (―[I]n fashioning federal
principles to govern areas left open by Congress, our function is to effectuate congressional
policy.‖).
7
See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (―The amount of the fee, of
course, must be determined by the facts of each case.‖).
8
See infra Part III.A.
9
See, e.g., infra Part III.B. Without such procedures, the lower courts are will be left to their
own volition in applying the purpose of the statute. See infra Part III.A (analyzing a situation
where despite the lower court considering the purpose of the statute, the lower court fashioned a
procedure to arrive at an anti-enforcement result).

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

975

1988.10 Hence, simply through applying the law, lower courts may be
inadvertently undermining the purpose of § 1988.11 This attacks not only
the soundness of § 1988 but all other civil rights laws which derive their life
from a proper functioning of § 1988.12
This Comment‘s purpose is to discuss and propose a solution to the
threat anti-enforcement ideology poses to inadvertently undermine the
purpose of § 1988. Since no two fee determinations are alike, this
Comment will demonstrate how the procedure for determining a fee amount
allows—even encourages—countervailing policies to undermine the proplaintiff purpose of the law.13 The solution proposed will aim at addressing
these procedural concerns. Part II will address the background and purpose
of 42 U.S.C § 1988. Part III will address how § 1988‘s purpose is
potentially undermined by an anti-enforcement ideology. Part IV will
propose a solution to balance these anti-enforcement influences.

II.

THE BACKGROUND OF 42 U.S.C. § 1988

A. The History and Analysis of § 1988
Congress created § 1988 as a direct response to the Supreme Court‘s
affirmation of the ―American Rule‖ in Alyeska Pipeline Service Co. v.
Wilderness Society.14 In Alyeska, the Court held ―each party in a lawsuit
ordinarily shall bear its own attorney‘s fees unless there is express statutory
authorization to the contrary.‖15 Congress responded by passing The Civil
10

See infra Part III.C.
See infra Part III.D.
12
See S. REP. NO. 94-1011, at 1, 4–6 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5911–
13 (noting the virtual necessity of § 1988 and court awarded attorney fees to uphold Congress‘
civil rights laws).
13
This approach to analyzing the issue presented is preferred to taking on the much more
difficult task of demonstrating how the law is systematically undermined by an anti-enforcement
ideology. See Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34
HARV. C.R.-C.L. L. REV. 99, 160 (Winter 1999) (indicating the outsider is reduced to
―speculation‖ as to the possible causes behind legal devices used to achieve anti-enforcement
ends, since ―it is impossible to know why‖ such devices are used).
14
421 U.S. 240, 246, 269–70 (1975); see Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); S.
REP. NO. 94-1011, at 1 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5909 (―The purpose of
this amendment is to remedy anomalous gaps in our civil rights laws created by the [Supreme
Court‘s decision in] . . . Alyeska Pipeline . . . .‖).
15
421 U.S. at 247 (―We are asked to fashion a far-reaching exception to this ‗American Rule‘;
but having considered its origin and development, we are convinced that it would be inappropriate
11

ROUSE.FINAL

976

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

Rights Attorney‘s Fees Act of 1976, giving the ―specific authorization
required by the Court in Alyeska.‖16 Under this statute, district courts were
authorized to award prevailing parties‘ attorneys‘ fees, creating the
necessary statutory exception to the American Rule the Court required in
Alyeska.17
The statutory scheme of The Civil Rights Act did not mandate an award
for attorneys‘ fees, but allowed the lower court to award reasonable
attorneys‘ fees in their discretion.18 Today, this is codified at 42 U.S.C.
§ 1988 and requires a party to meet two steps to recover. A party must first
cross the ―statutory threshold.‖19 The statutory threshold itself is a two-step
analysis.20 First, the lower court must determine if the fee-petitioning party
(usually the plaintiff) is a prevailing party under § 1988.21 A prevailing
party is one that has ―succeed[ed] on any significant issue in litigation,‖22
which ―materially alters the legal relationship between the parties by
modifying the defendant‘s behavior in a way that directly benefits the
plaintiff.‖23 If the plaintiff is determined not to be a prevailing party, the
lower court may determine whether the defendant is to be awarded
attorneys‘ fees.24 If the plaintiff is a prevailing party, the lower courts will
consider the ―special circumstances exception,‖ whether to deny awarding
the prevailing party attorneys‘ fees because of special circumstances that

for the Judiciary, without legislative guidance, to reallocate the burdens of litigation . . . .‖); see
also Hensley, 461 U.S. at 429.
16
S. REP. NO. 94-1011, at 4, as reprinted in 1976 U.S.C.C.A.N. 5908, 5912.
17
See 42 U.S.C. § 1988 (2006).
18
The Civil Rights Attorney‘s Fees Award Act of 1976, S. 2278, 94th Cong. (1976) (enacted)
(―the court, in its discretion, may allow . . . a reasonable attorney‘s fee.‖).
19
Hensley, 461 U.S. at 433.
20
Id.
21
See 42 U.S.C. § 1988 (2006).
22
Hensley, 461 U.S. at 433.
23
Farrar v. Hobby, 506 U.S. 103, 111–12 (1992); Tex. State Teachers Ass‘n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989) (―The touchstone of the prevailing party inquiry
must be the material alteration of the legal relationship of the parties . . . . Where such a change
has occurred, the degree of the plaintiff‘s overall success goes to the reasonableness of the award
under Hensley, not to the availability . . . .‖).
24
See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 422 (1978); Khan v.
Gallitano 180 F.3d 829, 837 (7th Cir. 1999) (―Although the language of the statute seems not to
distinguish between prevailing parties, prevailing plaintiffs receive attorney's fees as a matter of
course, but prevailing defendants only receive attorney's fees if the plaintiff's claim was ‗frivolous,
unreasonable, or groundless.‘‖) (quoting Christiansburg, 434 U.S. at 422).

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

977

render the award unjust.25 If no special circumstances exist, the district
court proceeds to step two and determines a reasonable fee amount.26 The
district court determines a reasonable fee amount by applying the lodestar,
―the number of hours reasonably expended . . . multiplied by a reasonable
hourly rate.‖27 The prevailing party will bear the burden to present
sufficient documentation of the hours reasonably expended and hourly
rates.28 Upon determining the lodestar, the lower courts may consider other
factors that may require an adjustment to the lodestar.29
Such
considerations may include the level of success and ―the significance of the
overall relief obtained‖ by the plaintiff.30 To give the lower court flexibility
in determining ―what essentially are factual matters,‖31 the law gives the
lower court broad discretion, subject to review only for abuse.32

25
Hensley, 461 U.S. at 429, 433 (quoting S. REP. NO. 94-1011, at 1, 4 (1976), as reprinted in
1976 U.S.C.C.A.N. 5908, 5912).
26
Id. at 433.
27
Id. The term ―lodestar‖ was applied to this analysis later. See Pennsylvania v. Del. Valley
Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986). The lodestar is an adaptation of the
twelve factors announced in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974),
and suggested in both the House and Senate reports of § 1988 as constituting a reasonable fee
request. Hensley, 461 U.S. at 430 n.3 (reciting the twelve factors as (1) time and labor required,
(2) the novelty and difficulty of the questions, (3) the skill required to perform the legal service,
(4) opportunity costs for taking the case, (5) the attorney‘s customary fee, (6) whether the fee is
fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount
involved and results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the
undesirability of the case, (11) the nature and length of the professional relationship with the
client, (12) awards in similar cases) (citing Johnson, 488 F.2d at 717–19).
28
Hensley, 461 U.S. at 437.
29
Id. at 434 (―The product of [the lodestar] does not end the inquiry . . . . [T]he district court
[may] adjust the fee upward or downward . . . .‖).
30
Id. at 435.
31
See id. at 437; Posada v. Lamb County, 716 F.2d 1066, 1072 (5th Cir. 1983) (―At bottom,
the inquiry is an intensely factual, pragmatic one.‖)
32
City of Riverside v. Rivera, 477 U.S. 561, 572–73, 586, 588 (1986) (Brennan, J., plurality,
Powell, J., concurrence) (reviewing the order of an award of reasonable fees for an abuse of
discretion and findings of fact for clear error). Additionally, the lower court is not bound to award
amounts determined by the lodestar. See Hensley, 461 U.S. at 435 n.11 (saying a reasonable fee
request is not the product of a mathematical formula, but a determination of reasonableness).

ROUSE.FINAL

978

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

B. The Purpose of § 1988
In every meaning of the word, 42 U.S.C. § 1988 was intended to be a
pro-plaintiff law.33 The legislative history is instructive on the reasoning
behind this formulation.34 Congress was concerned about the enforcement
of civil rights laws and was in need of private citizens to help vindicate
these important congressional goals.35 As with other fee-shifting statutes,
private citizens rarely sought to vindicate their violated civil rights because
of the prohibitive costs in paying their attorneys‘ fees.36 Through the
promise of awarding attorneys‘ fees, attorneys would have the incentive to
represent persons whose civil rights had been violated and were otherwise
unable to pay.37 Hence, ―[t]he purpose of § 1988 [was] to ensure ‗effective
access to the judicial process‘ for persons with civil rights grievances‖ by
creating an incentive for attorneys to take these cases.38 This would
increase the likelihood of judicial enforcement of civil rights laws thereby
―achiev[ing] [Congress‘ goal,] consistency in . . . civil rights laws.‖39 Thus,
private citizens would act as ―private attorney generals,‖ enforcing
important congressional policy that Congress was otherwise without means
to administer.40

33

See, e.g., S. REP. NO. 94-1011, at 1, 4 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908,
5912 (intending a party who was successful at asserting a civil right claim to ordinarily recover
attorneys‘ fees).
34
Throughout this Comment, there will be heavy reference and reliance upon the legislative
history of § 1988. Strong reliance on the legislative history is justified because the Supreme Court
has heavily relied upon legislative history to interpret § 1988. See, e.g., Blanchard v. Bergeron,
489 U.S. 87, 91 (1988); Riverside, 477 U.S. at 574, 575–80, 585, 591–92 (Brennan, J., plurality,
Powell, J., concurrence, Rehnquist, J., dissent); Blum v. Stenson, 465 U.S. 886, 893–95 (1984);
Hensley, 461 U.S. at 429, 434; but see Blanchard, 489 U.S. at 97–100 (Scalia, J. concurrence)
(criticizing the court for relying so heavily on the legislative history when interpreting § 1988).
35
S. REP. NO. 94-1011, at 2, as reprinted in 1976 U.S.C.C.A.N. 5908, 5909.
36
Id., as reprinted in 1976 U.S.C.C.A.N. 5908, 5910 (―In many cases arising under our civil
rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a
lawyer.‖).
37
Id. (―[C]itizens must have the opportunity to recover what it costs them to vindicate these
rights in court.‖).
38
Hensley, 461 U.S. at 429 (quoting H.R. REP. 94-1558, at 1 (1976)). The Senate Report
calls this ―remedy[ing] anomalous gaps.‖ S. REP. NO. 94-1011, at 1, as reprinted in 1976
U.S.C.C.A.N. 5908, 5908.
39
S. REP. NO. 94-1011, at 1, as reprinted in 1976 U.S.C.C.A.N. 5908, 5909.
40
Id. at 3–4, as reprinted in 1976 U.S.C.C.A.N. 5908, 5910 (noting such incentive
incidentally limits expanding governmental enforcement bureaucracy).

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

979

Congress had two objectives in enacting § 1988.41 First, Congress
recognized that awarding fees carried a remedial objective, providing
private citizens with the means to remedy both their individual harm42 and
the harm done to the law.43 As Congress stated, ―fee awards have proved
an essential remedy if private citizens are to have a meaningful opportunity
to vindicate the important Congressional policies which these law‘s
contain.‖44 This remedial objective is the backbone of § 1988.45 Second,
Congress recognized awarding fees carried a deterrent objective, to prevent
those who violated the nation‘s laws from proceeding ―with impunity.‖ 46
Congress sought to deter potential violators by increasing their prospects of
facing litigation for their actions.47 This threat would encourage potential
violators to comply with Congress‘ laws, as one court recognized:
[Without the threat of awarding attorneys‘ fees]
government officials such as the ones involved here [will]
be free to harass or victimize disfavored employees,
secured in the knowledge that the employee will either be
41

Congress demonstrated a dual objective in one of the opening phrases in the Senate Report.
―If private citizens are to be able to assert their civil rights [remedial], and if those who violate the
Nation‘s fundamental laws are not to proceed with impunity [deterrent], then citizens must have
the opportunity to recover what it costs them to vindicate these rights in court.‖ S. REP. NO. 941011, at 2, as reprinted in 1976 U.S.C.C.A.N. 5908, 5910; see also Samuel R. Berger, Court
Awarded Attorneys’ Fees: What Is “Reasonable”?, 126 U. PA. L. REV. 281, 309 (1977) (noting
§ 1988 has two objectives). Note, however, that both the remedial and the deterrent objective are
tightly interwoven. See, e.g., S. REP. NO. 94-1011 at 3, as reprinted in 1976 U.S.C.C.A.N. 5908,
5911 (―[F]ees are an integral part of the remedy necessary to achieve compliance with our
statutory policies.‖ (emphasis added)).
42
See S. REP. NO. 94-1011, at 5, as reprinted in 1976 U.S.C.C.A.N. 5908, 5912 (describing
the purpose as allowing private citizens to ―vindicate [their] fundamental rights‖).
43
See City of Riverside v. Rivera, 477 U.S. 561, 574–76 (1986) (Brennan, J., plurality)
(discussing the public benefits attached to civil rights litigation enabled by § 1988).
44
S. REP. NO. 94-1011, at 2, as reprinted in 1976 U.S.C.C.A.N. 5908, 5910.
45
See id. at 6, as reprinted in 1976 U.S.C.C.A.N. 5908, 5913 (―If the cost of private
enforcement actions becomes too great, there will be no private enforcement[,] [and] [i]f our civil
rights laws are not to become mere hollow pronouncements which the average citizen cannot
enforce, we must maintain the traditionally effective remedy of fee shifting . . . .‖).
46
Id. at 2, as reprinted in 1976 U.S.C.C.A.N. 5908, 5910; see also Popham v. City of
Kennesaw, 820 F.2d 1570, 1580 (11th Cir. 1987) (―The affirmation of constitutional principles
produces an undoubted public benefit that courts must consider in awarding attorneys' fees under
Section 1988. When courts affirm the constitutional rights of citizens, public officials are
deterred from violating other citizens' rights in the future.‖) (citing Riverside, 477 U.S. at 574–76)
(emphasis added).
47
See S. REP. NO. 94-1011, at 2–3, as reprinted in 1976 U.S.C.C.A.N. 5908, 5909–11.

ROUSE.FINAL

980

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

wholly unable to stand up for his or her rights because of
the staggering cost of prospective fees involved or . . . left
with a bill which . . . would be financially catastrophic. 48
Congress may have also viewed the award of the fees itself as an
intended deterrent.49 For instance, Congress specifically called the fee
award ―an integral part of the remedies necessary to obtain such
compliance.‖50 Though fee awards had never been viewed as a remedy for
an injury at common law51 (and even Congress labeled the award ―as part of
the costs‖ of litigation),52 by labeling fee awards a ―remedy,‖ Congress may
have intended the award to serve the deterrent objective in a punitive
capacity.53 Whether or not Congress intended the fee award to serve a
punitive function,54 this is often a practical effect of a lower court awarding
attorneys‘ fees.55
48

Fitzgerald v. U.S. Civil Serv. Comm‘n, 407 F. Supp. 380, 387 (D.D.C. 1975), rev’d on
other grounds, 554 F.2d 1186, 1188 (1977). This was a pre-section 1988 case was later reversed
because the lower court had awarded attorneys‘ fees in violation of the American Rule without
explicit and clear statutory authority. Fitzgerald, 554 F.2d at 1188.
49
Jones v. Orange Hous. Auth., 559 F. Supp. 1379, 1383 (D.N.J. 1983) (noting beyond the
prospects of litigation, ―assessing fees [in themselves] against defendants in all circumstances may
deter wrongdoing in the first place‖) (quoting Rodriguez v. Taylor, 569 F.2d 1231, 1245 (3d Cir.
1977)).
50
S. REP. NO. 94-1011, at 5, as reprinted in 1976 U.S.C.C.A.N. 5908, 5913 (emphasis
added).
51
See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200–01 (1988) (stating ―an award
[of attorneys' fees] does not remedy the injury giving rise to the action‖ but is usually ―collected
as ‗costs‘‖).
52
See The Civil Rights Attorney‘s Fees Award Act of 1976, S. 2278, 94th Cong. (1976)
(enacted).
53
See S. REP. NO. 94-1011, at 3, as reprinted in 1976 U.S.C.C.A.N. 5908, 5910 (recognizing
―the remedy of attorneys‘ fees‖ as not being new) (emphasis added).
54
Many courts have rejected the punitive aspect of the fee award. See, e.g., Milwe v.
Cavuoto, 653 F.2d 80, 84 (2d Cir. 1981) (awarding attorneys‘ fees where despite only nominal
damages being awarded on the merits but rejecting the notion that the award served as a
punishment to the defendant). There is some language among the circuits directly condemning the
characterization of the § 1988 fee award as serving a punitive or deterrent objective. See, e.g.,
Simpson v. Sheahan, 104 F.3d 998, 1003 (7th Cir. 1997) (―In light of Congress' purpose in
enacting § 1988, it is clear that an award of attorney's fees is not intended to punish defendants.‖).
(emphasis added). However, this issue is far from settled. For instance, in Hyde v. Small, the 7th
Circuit noted a dispute in their Circuit concerning this issue (whether to recognize a punitive
factor in the award of attorneys‘ fees) and decided not to resolve it. See Hyde v. Small, 123 F.3d
583, 585 (7th Cir. 1997) (comparing the language in Simpson, 104 F.3d at 1003 with Charles v.
Daley, 846 F.2d 1057, 1063 (7th Cir. 1988), which proposed the opposite rule). Additionally, in

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

981

Because awarding attorneys‘ fees is necessary to effect the purpose of
civil rights laws, the real key behind § 1988 is the incentive it provides to
lawyers to take the otherwise underrepresented cases.56 To preserve this
incentive at every step of the statutory analysis, Congress offered a
balancing formula. Once a party is determined to be a prevailing party, the
party is presumed to recover some attorneys‘ fees.57 The lower court must
then determine an amount ―adequate to attract competent counsel,‖ or an
amount consistent with being paid by a fee-paying client, but not amounts
that ―produce windfalls to [the] attorneys.‖58 In this way, Congress
balanced the broad discretion of the lower courts, establishing a
Hyde, the Seventh Circuit cites Langton v. Johnston, a First Circuit case, for the proposition that a
§ 1988 fee award has no punitive function. See Hyde, 123 F.3d at 585 (citing Langton, 928 F.2d
1206, 1226 (1st Cir. 1991) (―an essentially punitive purpose has no place in a prevailing party
analysis under section 1988‖)). But Langton‘s language condemned using § 1988 as a sanction
for a party‘s ―prolonged foot-dragging‖ during the process of litigation, not for the defendant‘s
violation of the civil rights law forming the merits of the case. See 928 F.2d at 1226 (―[T]he aim
of [§ 1988] is to reward successful plaintiffs for their efforts, not to punish victorious defendants
for some unspecified degree of recalcitrance.‖) (emphasis added). Some courts may be
unintentionally upholding this deterrent objective when they consider the public benefit the civil
rights litigation served as a factor to weigh in awarding attorney fees. See, e.g., Villano v. City of
Boynton Beach, 254 F.3d 1302, 1307 (11th Cir. 2001).
55
If the statute allows the recovery of attorney fee awards that are substantially more than the
damages sought, then (of course) the real reason to avoid violating an individual‘s civil rights will
be to avoid paying a substantial attorney fee award. See, e.g., McHenry v. Chadwick, 896 F.2d
184, 189 (6th Cir. 1990) (awarding attorneys‘ fees more than five times damages recovered on the
merits); McKevitt v. City of Meriden, 822 F. Supp 78, 80–81 (D. Conn. 1993) (recovering
attorneys‘ fees almost nine times more than the damages recovered on the merits). While the
preceding argument is really just common sense, common sense is evidence of congressional
intent. First United Methodist Church v. U.S. Gypsum Co., 882 F.2d 862, 869 (4th Cir. 1989)
(noting common sense is the ―most fundamental guide to statutory construction‖). Congress at
least condoned this effect, since attorney fees are not to be reduced merely because the fee award
is substantially more than the compensation sought on the merits. See S. REP. NO. 94-1011, at 6,
as reprinted in 1976 U.S.C.C.A.N. 5908, 5913 (―It is intended that the amount of fees awarded
[are] . . . not [to] be reduced because the rights involved may be nonpecuniary in nature.‖)
(emphasis added).
56
See S. REP. NO. 94-1011, at 6, as reprinted in 1976 U.S.C.C.A.N. 5908, 5913 (―[F]ee
awards . . . are necessary if citizens are to be able to effectively secure compliance with these
existing statutes [civil rights laws].‖). Contrast this with other language, saying fee awards are not
essential for civil rights laws to be fully enforced. See id. at 5.
57
Id. at 4, as reprinted in 1976 U.S.C.C.A.N. 5908, 5912 (noting prevailing parties ―should
ordinarily recover an attorney‘s fee‖) (quoting Newman v. Piggie Park Enter., 390 U.S. 400, 402
(1968)).
58
Id. at 6, as reprinted in 1976 U.S.C.C.A.N. 5908, 5913.

ROUSE.FINAL

982

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

presumption in favor of the prevailing party recovering fee requests no
different from what the attorney would ordinarily obtain with a fee-paying
client.59 Hence, in every sense of the word, § 1988 was intended to be a
pro-plaintiff law.

III. AN ANTI-ENFORCEMENT INFLUENCE
A. A Direct Influence: Activism Among Lower Courts
Concerns of anti-enforcement goals influencing various courts‘
interpretation and application of more pro-plaintiff minded laws are
common place60 and have been voiced by both the media61 and the
judiciary.62 Section 1988 is certainly not immune to these influences.63 For
59
See id. (―[C]ounsel for prevailing parties [under § 1988] should be paid as is traditional
with attorneys compensated by a fee-paying client . . . .‖).
60
See, e.g., Colker, supra note 13, at 99, 160 (noting judges‘ hostility towards a statute
portrayed as a ―windfall statute for the plaintiffs‖ by the media); James C. Harrington, Civil
Rights, 28 TEX. TECH L. REV. 367, 429 (1997) (critiquing a 5th Circuit decision saying ―[w]hile
many may decry the activism of liberal judges, the activism shown by [this] en banc court,
dominated by conservative judges, is remarkable both for its breadth and its facile disregard of
stare decisis‖) (emphasis in original); Nancy Levit, The Caseload Conundrum, Constitutional
Restraint and the Manipulation of Jurisdiction, 64 NOTRE DAME L. REV. 321, 322 (1989) (―While
conservative judges urge judicial restraint, they often practice selective activism. At times
caseload concerns seem paramount to federal courts, while at other times courts ignore the accessexpansive effects of their decisions. Indeed, the malleability of the overload issue suggests it is
being used as an instrument to further other goals.‖) (emphasis added); James B. Staab,
Conservative Activism on the Rehnquist Court: Federal Preemption is No Longer a Liberal Issue,
9 ROGER WILLIAMS U. L. REV. 129, 129–30 (2004) (noting the Supreme Court‘s ―five-justice
conservative bloc‖ has sharply limited federal authority in areas such as product liability thereby
fulfilling the anti-enforcement ―political agenda of protecting ‗big business‘ from various forms
of tort liability‖) (citations omitted) (emphasis added).
61
For example, see Editorial, Shielding the Powerful, N.Y. TIMES, Feb. 21, 2007, at A20,
available at 2007 WLNR 3379639 (West), where the New York Times comments on the Supreme
Court‘s decision in Phillip Morris USA v. Williams—overturning a state‘s award of punitive
damages against corporate giant Phillip Morris—saying ―[t]he [C]ourt in recent years has become
increasingly activist when it comes to defending the rights of corporations by striking down
punitive damage awards.‖ Id.
62
See, e.g., Positive Software Solutions, Inc. v. New Century Mortg. Corp., 476 F.3d 278,
286 (5th Cir. 2007) (Reavley, J., dissenting) (criticizing the court for ―chang[ing] the law‖ to
achieve its own political agenda, protecting ―powerful parties‖).
63
See, e.g., Anne S. Emanuel, Forming the Historic Fifth Circuit: The Eisenhower Years, 6
TEX. F. ON C.L. & C.R. 233, 246 (2002) (noting the sentiments of one Judge Warren Jones of the
5th Circuit who ―had a solid record on civil rights . . . [but] resented, understandably, being

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

983

instance, the discretion the law gives to the lower courts presents a potential
issue. The law grants lower courts broad discretion to determine a
reasonable fee amount because the lower courts, unlike the appellate courts,
will be intimately familiar with the facts of the litigation and thus more
equipped to make the factual determination of a reasonable fee request.64
However, in making the reasonable fee determination, the lower court does
more than resolve factual issues; the lower court effects the policy of
§ 1988.65 Thus, by granting lower courts broad discretion, the law
potentially affords lower courts an opportunity to construe and adapt
congressional policy without any meaningful review.66
The subjectivity of an analysis derived from a lower court‘s broad
discretion coupled with an absence of meaningful review makes § 1988
grouped with . . . [judges] considered ‗more conservative and less disposed (and in some cases
hostile) toward plaintiffs in civil rights decisions.‘‖) (citations omitted); William K. Kimble,
Attorney’s Fees in Civil Rights Cases: An Essay on Streamlining the Formulation to Attract
General Practitioners, 69 MARQ. L. REV. 373, 387 (1986) (―Justice Rehnquist‘s tentative
opinion . . . tends to ignore the public interest genesis of the Attorney‘s Fees Act of 1976 . . . .‖);
Jeffrey A. Parness & Gigi A. Woodruff, Federal District Court Proceedings to Recover Attorney's
Fees For Prevailing Parties on Section 1983 Claims in State Administrative Agencies, 18 GA. L.
REV. 83, 84–85 (1983) (―Th[e] legislative purpose [of § 1988] has . . . been frustrated by the
repeated failures of the lower federal courts to implement the statute on behalf of civil rights
litigants who have prevailed earlier on claims brought . . . .‖).
64
See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (―We reemphasize that the district
court has discretion in determining the amount of a fee award. This is appropriate in view of the
district court‘s superior understanding of the litigation and the desirability of avoiding frequent
appellate review of what essentially are factual matters.‖); see also supra note 31. Other reasons
courts have given to justify such broad discretion is the need for streamlining the judicial process
and avoid turning fee requests into a second major litigation, see Hensley, 461 U.S. at 437, and the
absence of a need for uniformity in awarded fee amounts. See Estate of Borst v. O'Brien, 979
F.2d 511, 514 (7th Cir. 1992).
65 See Hensley, 461 U.S. at 437 (―[T]he [district] court necessarily has discretion in making
this equitable judgment. This discretion, however, must be exercised in light of the considerations
we have identified.‖). See the pre-Hensley case Keyes v. School District No. 1, where the lower
court found there was ―no fixed standard or guide by which the court can determine reasonable
attorneys‘ fees,‖ illustrating the subjectivity of the analysis, and the capability of a court to
institute its own policy in making these factual determinations. 439 F. Supp. 393, 402 (D. Colo.
1977).
66
This potential issue has been discussed before. See William K. Kimble, Attorney’s Fees in
Civil Rights Cases: An Essay on Streamlining the Formulation to Attract General Practitioners,
69 MARQ. L. REV. 373, 388 (1986) (arguing there is a ―need for a neutral fee-setting process that
does not relate fees in statutory cases [such as § 1988] to subjective judgments‖) (quoting Third
Circuit Task Force Report, Court Awarded Attorney Fees, Supplement to 771 F.2d at 19, 39 (3d
Cir. 1985)).

ROUSE.FINAL

984

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

especially vulnerable to influence from pro-establishment, anti-enforcement
goals that are contrary to the pro-plaintiff purpose of § 1988. For example,
in Rock Against Racism v. Ward, the lower court allowed a set-off against
what appeared to be an otherwise reasonable § 1988 fee request by the
prevailing plaintiff.67 The plaintiff in Rock Against Racism had obtained
sufficient relief on the merits to be considered a prevailing party for
purposes of § 1988.68 Subsequently, both the plaintiff and the defendant
(the City of New York) had come to an agreement as to the reasonable
attorneys‘ fees owed under § 1988.69 The issue before the court was
whether the defendant was allowed to set-off the costs incurred to the
plaintiff while the case was on appeal before the Supreme Court.70 The
court did not cite any test, but relied heavily upon its broad discretion in
deciding to allow the set-off in favor of the defendant.71 The court
explained:
[While] mindful of the policy reasons underlying
§ 1988 . . . the City [defendant] presently faces increasingly
difficult economic circumstances, with social demands
upon it which far outstrip its funding powers. Accordingly
there is a countervailing [anti-enforcement] policy which
militates against requiring the City to forego costs to which
the Supreme Court has held it entitled, and which can be
funded within the context of the litigation.
As the result of the set-off, plaintiff‘s attorneys will
recover for themselves less than they otherwise
would . . . [however] I conclude that it is less unfair to set
these costs off against the fees of plaintiff‘s attorneys than

67
Rock Against Racism v. Ward, No. 85 Civ. 3000-CSH, 1989 U.S. Dist. LEXIS 14869, at
*6–7 (S.D.N.Y. Dec. 7, 1989) (designated for publication), on remand from 491 U.S. 781, 784
(1989). As the Court in Hensley recognized, settlements are the ideal ―reasonable attorney‘s fee.‖
See Hensley, 461 U.S. at 437.
68
Rock, 1989 U.S. Dist. LEXIS 14869, at *2–3.
69
Id.
70
Id. at *3.
71
Id. at *5 (―I begin with the observation that the right of the prevailing party in a § 1983
action to attorney's fees is not absolute. The question rests in the sound discretion of the district
court.‖).

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

985

it would be to require the City to pay plaintiff‘s attorneys in
full and recover nothing on the costs.72
The court upheld this rationale despite the obvious disincentive this
decision created with respect to the plaintiff‘s attorneys.73 The lower court
in Rock even noted that the net effect of the decision was inconsistent with
the purposes of § 1988, saying, ―[i]t is an imperfect world[,] [but]
[s]ometimes the Chancellor in equity must choose between greater and
lesser degrees of imperfection.‖74 This was not an attempt to balance the
purpose of the statute with the circumstances at hand; this was a blatant
application of anti-enforcement ideology, which undermined the purpose of
the statute.75

B. Balancing the Anti-Enforcement Influence
Since the law recognizes the pro-plaintiff intent of § 1988,76 the law
needs to balance the lower courts‘ broad discretion by requiring lower
72

Id. at *5–6.
The judge noted the plaintiff‘s indigence and that the decision to force the plaintiff to
absorb the costs would make these costs ―in all likelihood . . . uncollectible.‖ Id. at *2–3.
74
Id. at *6.
75
The lower court‘s failure to label whether its broad discretion was exercised under the
reasonableness analysis or the special circumstances exception enabled the court to formulate its
own broad discretion under both analyses. Id. at *5 (exercising broad discretion subject to abuse
of discretion under a reasonableness analysis to consider a special circumstance). This was wrong
on two accounts. First, since the parties had agreed upon the fee award, the court was past the
threshold inquiry and should have been determining whether to exercise the set-off under the
reasonableness analysis—treating the set-off as a reduction of the lodestar—instead of considering
the factor as a ―special circumstance.‖ See id. Second, the hybrid test led the court to consider
factors—the ability or inability of the defendant to pay the award—that are not in the
reasonableness analysis. See id. Interestingly, the law has specifically rejected the ability of the
defendant to pay as a special circumstance warranting a denial of a fee request. See, e.g.,
Coppedge v. Franklin County Bd. of Educ., 345 F. Supp. 2d 567, 570–71 (E.D.N.C. 2004) (citing
multiple circuits decided before the decision in Rock was rendered and noting, ―[m]ost courts that
have considered the issue have determined that the ability, or inability, to pay attorney's fees is not
a ‗special circumstance‘ warranting the denial of an award.‖). Hence, the only way the court
could have given this factor weight was under its ―broad discretion‖ in the reasonableness
analysis. But since the judge‘s discretion in the reasonableness analysis to make factual the
determination of an attorneys‘ fee award is limited to the considerations in Hensley, considering
this additional factor is clearly improper. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)
(―[The lower court‘s equitable] discretion, however, must be exercised in light of the
considerations we have identified.‖) (emphasis added).
76
See supra note 38.
73

ROUSE.FINAL

986

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

courts either to procedurally or expressly balance the purpose of the statute
in their § 1988 analysis.77 The law has effectively accomplished this at both
steps of the statutory threshold. Obviously, the congressional policy would
not be served unless a broad class of persons are allowed to recover under
§ 1988.78 Thus, the law provides for a ―generous formula‖ at the first step
of the statutory threshold, effectively limiting a lower court‘s discretion and
the possibility of anti-enforcement ideology from undermining the purpose
of the statute.79 To be prevailing, a party need only obtain some relief on
any significant issue providing some benefit the party sought.80 Hence, a
party need not necessarily obtain a favorable ruling on a final judgment to
be considered prevailing.81 A party may even obtain an unfavorable ruling
and be considered prevailing, as in Farrar v. Hobby.82 In Farrar, while the
plaintiffs were able to prove a civil rights violation, the plaintiffs were
unable to prove their claim for an entitlement to compensatory damages. 83
Although the plaintiffs failed to prove the ultimate claim for damages,
because the plaintiffs were awarded nominal damages, the plaintiffs were
deemed prevailing parties for purposes of the statute.84 The Court found the
plaintiffs prevailed because ―[a] judgment of damages in any
amount . . . modifies the defendant‘s behavior for the plaintiff‘s benefit by
77

See supra note 75 (citing Hensley, 461 U.S. at 437).
Congress indicated prevailing party status included a broad class of plaintiffs, including
parties who vindicated rights outside of court and even those who ultimately did not prevail on all
issues. See S. REP. NO. 94-1011, at 5 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5912–13.
79
See Hensley, 461 U.S. at 433 (―The standard for making this threshold determination . . . is
a generous formulation . . . .‖). The term ―prevailing party‖ has been interpreted by the courts
broadly in order to achieve the social equity § 1988 sought to provide for plaintiffs. See, e.g.,
Milwe v. Cavuoto, 653 F.2d 80, 84 (2d Cir. 1981) (holding fee award appropriate even though
damages sought were awarded under the state law claim and not the constitutional or civil rights
claim § 1988 was designed to cover); Knighton v. Watkins, 616 F.2d 795, 798 (5th Cir. 1980)
(holding a party is not time barred from claiming attorney‘s fees under § 1988 since ―Congress
directed that attorney's fees under section 1988 be treated as costs, there is no jurisdictional time
limit on the filing of a motion seeking such fees.‖); Smith v. Thomas, 725 F.2d 354, 356 (5th Cir.
1984) (holding a party is prevailing even though the ―victory‘ is not achieved within court);
Ganey v. Edwards, 759 F.2d 337, 339–40 (4th Cir. 1985) (holding monetary damage award or
equitable relief is not required for a party to be considered prevailing under the statute).
80
See Tex. State Teachers Ass‘n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989);
Hewitt v. Helms, 482 U.S. 755, 760 (1987).
81
Hanrahan v. Hampton, 446 U.S. 754, 756–57 (1980).
82
506 U.S. 103, 113 (1992).
83
Id. at 106–07 (1992).
84
Id. at 107, 113.
78

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

987

forcing the defendant to pay an amount of money he otherwise would not
pay.‖85 With such a generous formulation, the law has enabled a large class
of potential plaintiffs to qualify for fees under § 1988.86
To avoid discouraging litigation, the law has also been careful to
narrowly define circumstances that would allow prevailing defendants to
recover under § 1988.87 Should a party fail to establish prevailing party
status, the lower courts have discretion to consider whether prevailing
defendants are awarded fees under § 1988.88 Again, § 1988‘s purpose could
be undermined by allowing lower courts broad discretion to employ an antiestablishment ideology and award attorney‘s fees against unsuccessful
plaintiffs.89 However, the law only allows lower courts to award prevailing
defendants their attorneys‘ fees when the plaintiff‘s suit is determined to be
unreasonable, frivolous, or groundless.90 This exception has been described
as ―an extreme sanction‖ limited to the truly ―egregious cases of
misconduct,‖91 and is generally reserved for plaintiffs clearly abusing the
system.92

85

Id.
See John E. Kirklin, The Recovery of Attorney’s Fees in Civil Rights Cases Pursuant to 42
U.S.C. Section 1988, 512 PRAC. L. INST. 455, 519–21 (1994), available at 512 PLI/Lit 455
(Westlaw) (citing various lower courts applying this law broadly).
87
See Hughes v. Rowe, 449 U.S. 5, 14–15 (1980) (citing Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 422 (1978)) (―To take the further step of assessing attorney's fees against
plaintiffs simply because they do not finally prevail would substantially add to the risks inhering
in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement
of the provisions of Title VII.‖).
88
See S. REP. NO. 94-1011, at 5 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5912 (―[A]
party, if unsuccessful, could be assessed his opponent‘s fee . . . .‖); see also supra note 24.
89
See S. REP. NO. 94-1011, at 5, as reprinted in 1976 U.S.C.C.A.N. 5908, 5912–13.
90
See Christiansburg, 434 U.S. at 421 (prevailing defendants may recover when the
―plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in
subjective bad faith.‖); Hughes, 449 U.S. at 14–16 (holding prevailing defendant status alone is
not sufficient to justify a defendant‘s recovery under § 1988, nor is proving the plaintiff‘s claims
were legally insufficient).
91
Jones v. Cont‘l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986).
92
For example, even frivolous lawsuits are not deemed to be frivolous for the purposes of
§ 1988 if the question involves a novel or unresolved issue of law. See, e.g., Holloway v. Walker,
784 F.2d 1294, 1296 (5th Cir. 1986); Sherman v. Babbitt, 772 F.2d 1476, 1478 (9th Cir. 1985);
Colombrito v. Kelly, 764 F.2d 122, 132 (2d Cir. 1985). This same rule has been applied to pro se
plaintiffs. Pryzina v. Ley, 813 F.2d 821, 823–24 (7th Cir. 1987) (―[W]e have recognized that
arguments that a lawyer should or would recognize as clearly groundless may not seem so to the
pro se appellant.‖).
86

ROUSE.FINAL

988

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

Likewise, the law has advanced the purpose of § 1988 at the second step
of the statutory threshold by narrowing the breadth of the lower courts‘
discretion in finding a special circumstances exception.93 Since § 1988‘s
language does not obligate lower courts to award a prevailing party
attorneys‘ fees,94 if the law allows lower courts to apply its statutory
discretion broadly (without sufficient procedural balancing), antiestablishment influences might find many circumstances justifying a denial
of a fee request, effectively undermining the purpose of the statute by
limiting the class of prevailing parties who should ordinarily recover.95 The
law avoids this in two ways. First, the law requires lower courts to
expressly balance the purpose of the statute before considering whether the
special circumstance exception applies.96 This forces lower courts to
consider § 1988‘s pro-plaintiff policy in applying the special circumstances
exception, which encourages the lower courts to arrive at more pro-plaintiff
results.97 Second, the law rarely sanctions a circumstance as ―special‖98 and
these circumstances have generally been limited to cases where to award
the fee would result in obvious injustice.99 Hence, by making such
93

Blanchard v. Bergerson, 489 U.S. 87, 89 n.1 (1989) (quoting Hensely v. Eckerhart, 461
U.S. 424, 429 (1983)) (noting the court‘s discretion is not without limit in determining a special
circumstances exception); see, e.g., Sethy v. Alameda County Water Dist., 602 F.2d 894, 898 (9th
Cir. 1979) (holding no special circumstances will be found because a fee award would allegedly
result in an undeserved ―windfall‖ to the prevailing party).
94
42 U.S.C. § 1988 (2006) (―[T]he court, in its discretion, may allow the prevailing
party . . . a reasonable attorney‘s fee . . . .‖) (emphasis added).
95
See, e.g., supra note 75.
96
See Hensley, 461 U.S. at 429 (―[Section] 1988 authorize[es] the district courts to award a
reasonable attorney‘s fee to prevailing parties . . . . The purpose of § 1988 is [pro-plaintiff] . . . .
Accordingly, a prevailing plaintiff ‗should ordinarily recover an attorney‘s fee unless a special
circumstance would render such an award unjust.‘‖) (citation omitted); see, e.g., Coppedge v.
Franklin County Bd. of Educ., 345 F. Supp. 2d 567, 570 (E.D.N.C. 2004) (considering § 1988
policy before considering whether the special circumstance exception applies).
97
See infra Part III.C.1 (noting when the law forces courts to balance the purpose of the
statute with their analysis in § 1988, the resulting analysis generally leans pro-plaintiff).
98
See Love v. Mayor of Cheyenne, 620 F.2d 235, 237 (10th Cir. 1980) (―While there have
been decisions denying attorney's fees as unjust, these have been few and very limited.‖); see also
John E. Kirklin, The Recovery of Attorney’s Fees in Civil Rights Cases Pursuant to 42 U.S.C.
Section 1988, 512 PRAC. L. INST. 455, 570 (1994), available at 512 PLI/Lit 455 (Westlaw) (―The
courts have rejected most of the factors and considerations advanced by defendants as special
circumstances warranting the denial of Section 1988 fees to the prevailing plaintiff.‖).
99
See, e.g., Jones v. Orange Hous. Auth., 559 F. Supp. 1379, 1384 (D.N.J. 1983) (citing
Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1045 (4th Cir. 1976)) (holding ―where the injury
of which plaintiff complains is one that a defendant did not create and is powerless to prevent, and

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

989

exceptions ―extremely narrow‖100 with fees generally awarded as ―as a
matter of course,‖ the law has limited the lower courts discretion to prevent
anti-enforcement ideology from undermining the purpose of § 1988.101

C. The Reasonableness Analysis and The Anti-Plaintiff Development
1. A Balance Approach in the Reasonableness Analysis:
Blanchard’s Disincentive
Although the law has developed a procedure to balance antienforcement influences at the statutory threshold, the law has not required
lower courts to consider the purpose of § 1988 when determining a
reasonable fee request.102 The effect of not expressly connecting the
purpose of § 1988 with the reasonableness analysis should not be
understated. As also demonstrated at the statutory threshold, where the law
has required lower courts to expressly balance the purpose of the statute
with the reasonableness analysis, the resulting analysis tends to lean proplaintiff.103 For instance, the law instructs lower courts to consider, at least
for purposes of determining the number of hours reasonably expended, the
private sector‘s use of ―billing judgment,‖ drawing an analogy between
§ 1988‘s reasonable fee request and private attorney-client fee
arrangements.104 When the law has balanced the purpose of the statute
when considering whether to extend the analogy to a new situation, the
result has been strikingly pro-plaintiff. For instance, in Gisbrecht v.
Barnhart, the Court considered whether a prevailing party‘s attorney may
recover additional fees pursuant to their private contract.105 The Court
decided to extend the private fee arrangement analogy here because the
where that defendant in fact makes unsuccessful efforts to redress that injury, special
circumstances exist which make the award of fees against that defendant unjust‖)
100
See Espino v. Besteiro, 708 F.2d 1002, 1005 (5th Cir. 1983); Ellwest Stereo Theatre, Inc.
v. Jackson, 653 F.2d 954, 955 (5th Cir. 1981) (using language ―exceedingly narrow‖).
101
See Kirchberg v. Feenstra, 708 F.2d 991, 998 (5th Cir. 1983).
102
See Hensely v. Eckerhart, 461 U.S. 424, 434–40, 444 (1983) (majority op.; Brennan, J.,
dissenting) (noting the majority failed to recognize the incentive element ―to ensure that civil
rights plaintiffs with bona fide claims are able to find lawyers to represent them‖).
103
See supra Part III.B. Although the Court does not use the purpose of the statute as a
consideration for determining prevailing party status expressly, the results have had the same
effect because the Court initially pronounced the test as a ―generous formulation,‖ a pro-plaintiff
consideration. See Hensely v. Eckerhart, 461 U.S. 424, 433 (1983) (majority op.).
104
See Hensley, 461 U.S. at 434.
105
535 U.S. 789, 806 (2002).

ROUSE.FINAL

990

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

extension supported the pro-plaintiff purpose of the statute.106 As the Court
said, ―depriving plaintiffs of the option of promising to pay more than the
statutory fee[,] if that is necessary to secure counsel of their choice[,] would
not further § 1988‘s general purpose of enabling such plaintiffs . . . to
secure competent counsel.‖107 However, in Blanchard v. Bergon the Court
decided not to extend the private fee arrangement analogy, holding that a
contract between the plaintiff and attorney did not cap the attorneys‘ fees
recoverable under § 1988.108 Once again, the Court hinged its analysis
upon the purpose of § 1988, reasoning an extension of the analogy here
would ―create an artificial disincentive for an attorney who enters into a
contingent-fee agreement [to take civil rights cases],‖ which is not
consistent with the purpose of the statute—to ―encourage . . . civil rights
litigation.‖109 By applying the purpose of the statute when considering
whether to extend the private fee arrangement analogy, the law has
extended the analogy only when the resulting analysis would tend to
produce pro-plaintiff results.110

2. The Reasonableness Analysis: Hensley Factors of Reduction
When the law has not expressly balanced the purpose of the statute with
the reasonableness analysis, the resulting analysis has tended to create more
anti-plaintiff results. For example, the Court in Hensley v. Eckerhart
established the reasonable fee analysis by focusing on factors justifying a
reduction in the prevailing party‘s initial fee request.111 Although the
Hensley Court stated the pro-plaintiff purpose of § 1988 while citing the
statutory threshold analysis,112 § 1988‘s purpose was not mentioned or
applied to the list of five separate factors that justified a lower court
reducing an initial fee request.113 By not applying the statute‘s purpose to
106

Id.
Id. (quoting Venegas v. Mitchell, 495 U.S. 82, 89 (1990)).
108
489 U.S. 87, 95–96 (1989).
109
Id. at 95 (this is ―Blanchard‘s disincentive‖).
110
See, e.g., Inmates of the R.I. Training Sch. v. Martinez, 465 F. Supp. 2d 131, 138, 141–42
(D.R.I. 2006) (holding the prevailing party‘s attorneys were entitled to the § 1988 attorney‘s fee
and the 40% contingency fee agreement on the 2.08 million dollar compensatory damages verdict
after considering the purpose of the statute as required by the rule in Blanchard and other
Supreme Court authority).
111
See generally 461 U.S. 424 (1983).
112
See id. at 429.
113
The five factors include:
107

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

991

the factors of reduction, the law emphasized reduction of the initial fee
request in reasonableness analysis, an anti-plaintiff leaning result.114 Lower
courts have followed suit by expanding Hensley‘s factors of reduction,
reducing awards for such inadequacies as block-billing and vague entries.115
The failure to balance the purpose of the statute in the reasonable analysis
has also resulted in an anti-plaintiff analysis in determining lodestar
adjustments.116 Lodestar adjustments are factors considered by the lower
courts to adjust an initial fee request upward or downward when
determining whether the request is reasonable.117 Unlike the special
circumstances exception (where the law limited the lower courts‘ discretion
to avoid anti-enforcement ideology from influencing the analysis) the law
has granted the lower courts broad discretion to make anti-plaintiff,
downward adjustments of the lodestar.118 Conversely, the law has limited
the lower courts‘ discretion to find pro-plaintiff, upward adjustments.119

(1) inadequate documentation; (2) a failure to exercise billing judgment, which is
emphasized twice and broken into three sub-components of excluding hours spent on
excessive, redundant or otherwise unnecessary work; (3) excluding hours spent on
unsuccessful claims (emphasized twice); (4) failure to maintain a billing record
enabling the reviewing court to identify distinct claims; and (5) reducing fee requests
for limited or partial success,
emphasized four separate times in the opinion. See id. at 434–40 (1983).
114
See Colker, supra note 13, at 99, 160 (noting windfalls as an anti-plaintiff goal).
115
See, e.g., Robinson v. City of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir. 1998) (―The
term ‗block billing‘ refers to ‗the time-keeping method by which each lawyer and legal assistant
enters the total daily time spent working on a case, rather than itemizing the time expended on
specific tasks.‘‖) (quoting Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1554
n.15 (10th Cir. 1996)).
116
See Hensley, 461 U.S. at 434–36.
117
See supra Part II.A.
118
Although the Hensley Court says post-lodestar reduction adjustments may be made when
the plaintiff achieves only partial or limited success, since the prevailing party is only entitled to
the full fee request when results are ―excellent,‖ a lower court effectively has broad discretion to
reduce the lodestar for any results that are less than excellent. See Hensley, 461 U.S. at 435–36.
Since a party need not achieve ―excellent results‖ to be considered prevailing, understandably
many prevailing parties will automatically face a reduced fee request. See supra Part II.B. (noting
prevailing party status is a low barrier).
119
See Hensley, 461 U.S. at 433, 435–36 (enhancing for achieving exceptional success and
reducing for achieving partial or limited success and inadequate documentation). The Court
functionally closed the exception of enhancement for exceptional success in Pennsylvania v. Del.
Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 565–66 (1986) (limiting the factors
justifying an enhancement by saying ―the lodestar figure includes most, if not all, of the relevant

ROUSE.FINAL

992

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

Even where the law has allowed such upward adjustments, arguably, the
adjustments do not provide a pro-plaintiff result, but merely avoid creating
an unjust disincentive.120
The law‘s failure to balance this purpose has also resulted in a heavier
burden placed upon the prevailing party than what perhaps was originally
envisioned by Congress. The Hensley Court describes the prevailing
party‘s burden as an evidentiary burden of persuasion in the reasonableness
analysis as satisfied by presenting evidence sufficient to support a finding
under the lodestar, or evidence satisfying a burden of production.121
However, because the burden is on the lower court to determine the amount
is ―reasonable,‖122 in determining the reasonableness of the request, the law
factors constituting a ‗reasonable‘ attorney fee‖). Other enhancement factors which would have
created an additional incentive for the prevailing party have also been denied. See, e.g., City of
Burlington v. Dague, 505 U.S. 557, 566 (1992) (holding enhancement for contingent fee, or risk
taking, is not appropriate since this factor is incorporated into the lodestar). One possible
exception is the court‘s consideration of upward enhancement if the lawsuit served the public‘s
benefit. See supra notes 43, 46, 54.
120
See Missouri v. Jenkins, where the Court held enhancements for delay in payment are
allowed, allowing an attorney to use current market rates in the lodestar as opposed to the
historical rate (which would result in rates far less than what the attorney would be able to charge
a fee-paying client). 491 U.S. 274, 284 (1989).
121
Hensley states the determination of a reasonable fee request begins with a determination of
the lodestar, which requires ―[t]he party seeking [the] award . . . [to] submit evidence supporting
the hours worked and rates claimed.‖ Hensley, 461 U.S. at 433 (emphasis added). The Court
indicates the prevailing party‘s burden in the reasonableness analysis is satisfied by presenting the
court with evidence sufficient to support a finding under the lodestar when it stated, ―the fee
applicant bears the burden of establishing entitlement to an award [indicating a burden of
persuasion at the statutory threshold analysis] and documenting the appropriate hours expended
and hourly rates [indicating a burden of production to determine the lodestar in the reasonableness
analysis].‖ Id. at 437 (emphasis added). This was later supported by the Court noting the burden
was on the fee applicant to produce satisfactory evidence to determine a reasonably hourly rate.
Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984); Blum indicates this showing of evidence
sufficient to support a finding supports a rebuttable presumption that establishes a reasonable fee
request. See Pennsylvania v. Del. Valley Citizen‘s Council for Clean Air, 478 U.S. 546, 564
(1986) (―‗[If] the applicant for a fee has carried his burden of showing that the claimed rate and
number of hours are reasonable, the resulting product is presumed to be the reasonable fee‘ to
which counsel is entitled‖) (quoting Blum, 465 U.S. at 896). .
122
Del. Valley, 478 U.S. at 565 (―[S]uch [upward] modifications are proper only in certain
‗rare‘ and ‗exceptional‘ cases, supported by both ‗specific evidence‘ on the record and detailed
findings by the lower courts.‖) (citing Blum, 465 U.S. 898–901) (emphasis added); See Contin v.
Young & Rubicam P.R., Inc., 124 F.3d 331, 337 (1st Cir. 1997) (―[A] fee-awarding court that
makes a substantial reduction [in the lodestar] . . . should offer reasonably explicit findings, for the
court, in such circumstances, ‗has a burden to spell out the whys and wherefores.‘‖)

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

993

is easily construed (and courts have often required) a prevailing party to
support the fee request under a higher burden.123 For instance, the Hensley
opinion presumes that a prevailing party recovers a fully compensatory fee
when they obtain excellent results.124 Contrasted with the many reasons
why a full compensatory fee may be reduced, this implies that anything
short of excellent results should presumably result in a reduction.125 Under
this rationale, for a prevailing party to avoid a reduction to their initial fee
request, the party must demonstrate why the results obtained were
excellent, or should not be reduced under one of the many Hensley factors
of reduction.126 This construction results in a burden upon the prevailing
party that is inconsistent with the evidentiary burden—present evidence to
support a finding under the lodestar—stated by the Court.127 But even this
mere evidentiary burden may be construed as one of proof because the law
fails to explain with specificity what level of evidence is needed to support
a finding under the lodestar.128 For instance, the evidentiary burden for
supporting billable hours is apparently met if the ―billing time
records . . . enable a reviewing court to identify distinct claims‖ of the
―general subject matter of [the] time expenditure.‖129 However, in cases
where ―lawsuits cannot be viewed as a series of discrete claims‖ and
123

See, e.g., Heard v. Dist. of Columbia, No. 02-296, 2006 U.S. Dist. LEXIS 62912, at *21
(D.D.C. Sept. 5, 2006) (unpublished opinion) (suggesting that because ―the burdens of production
and persuasion regarding the reasonableness of the number of hours spent on various tasks always
remain with the plaintiff,‖ a prevailing party support of a fee request with evidence sufficient to
support a finding does not presumptively meet their burden in reasonable fee request inquiry)
(citing Am. Petroleum Inst. v. U.S. EPA, 72 F.3d 907, 915 (D.C. Cir. 1996)).
124
See Hensley, 461 U.S. at 435.
125
See id.; see also supra note 118.
126
See id. at 434–40; see also supra note 118.
127
See supra note 121.
128
For instance, in determining the attorney‘s reasonable market rate, in Blum v. Stenson, the
Court reinforced the idea that the prevailing party‘s burden is satisfied by producing ―satisfactory
evidence,‖ in addition to their own affidavits, to determine a reasonably hourly rate. 465 U.S.
886, 896 n.11 (1984). The Court indicates that this ―showing‖ of evidence sufficient to support a
finding in Blum creates a presumption that establishes a reasonable fee request. See Pennsylvania
v. Del. Valley Citizen‘s Council for Clean Air, 478 U.S. 546, 564 (1986) (―‘[If] the applicant for a
fee has carried his burden of showing that the claimed rate and number of hours are reasonable,
the resulting product is presumed to be the reasonable fee‘ to which counsel is entitled.‖) (quoting
Blum, 465 U.S. at 897). However, it is not difficult to imagine a lower court construing the
language of ―showing‖ in Blum as requiring a much higher burden than what Congress or the
Court perhaps initially envisioned. See infra note 133.
129
See Hensley, 461 U.S. at 437 & n.12.

ROUSE.FINAL

994

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

―counsel‘s time [is] devoted to the litigation as a whole,‖ the court awards
the hours in light of the overall relief.130 Since the law only awards fully
compensable fees when the prevailing party achieved excellent results, the
law indicates when the billing statement must be viewed as a whole, even if
the prevailing party is able to demonstrate discrete claims, nevertheless, the
prevailing party must show it obtained excellent results in order to receive
their requested billable hours.131 Whether a party meets its evidentiary
burden to establish a market rate is even more difficult to determine,
requiring at least an attorney‘s own affidavits and other ―satisfactory
evidence‖ which ―justify the reasonableness of the request.‖132 Hence,
though the law characterizes prevailing parties as having an easy burden to
meet,133 depending upon how a lower court applies the law, a lower court
may not only require the prevailing party to prove the reasonableness of the
request beyond the evidence supporting a claim under the lodestar, but to
disprove contentions of unreasonableness raised by the court or the
opposing party.134 In light of the factors that the lower courts weigh in
determining whether to reduce the fee request, the net result of the law‘s
ambiguity—as applied by lower courts—is that the prevailing party carries
a burden to overcome a presumption of reduction.135

3. A Segregated Purpose in the Reasonableness Analysis:
Farrar‘s Windfall
The law not only fails to consider the pro-plaintiff purpose of the statute
in the reasonableness analysis, but it also characterizes the reasonableness

130

See id. at 435.
See supra notes 125, 126.
132
See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984) (noting ―determining an appropriate
‗market rate‘ is ‗inherently difficult‘‖).
133
The Court indicates the burden is not high, emphasizing the request for attorney‘s fees
should not result in a second major litigation and settlements should be encouraged as much as
possible. Hensley, 461 U.S. at 437 & n.12 (―[C]ounsel, of course, is not required to record in
great detail how each minute of his time was expended.‖). If the law is to avoid litigation and
encourage settlement, the prevailing party should have an easy evidentiary burden to meet, rather
than an easily contestable burden to prove. See id.
134
See infra Part III.D. (noting the lower court‘s subjecting the prevailing party to a burden of
in supporting claims for a reasonable hourly rate).
135
Though this Comment argues this is not a correct interpretation of the statute, this is
certainly a reasonable interpretation of how the law can be applied. See infra Part III.D.
131

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

995

analysis‘ purpose as achieving an anti-plaintiff end—avoiding windfalls.136
Several years after the Court‘s decision in Hensley, a plurality of the Court
in City of Riverside v. Rivera described the purpose of the reasonableness
analysis as balancing a pro-plaintiff factor with an anti-plaintiff factor ―to
award fee amounts adequate to attract competent counsel, but . . . not [so
excessive to] produce windfalls.‖137 The Court explained the balance was
achieved simply by the lower courts applying the statute‘s scheme. 138 This
perspective was altered several years later in Farrar v. Hobby, where the
Court effectively ignored the structural balance (arguably even the balance
itself) by emphasizing that the purpose of the reasonableness analysis was
to avoid windfalls to attorneys.139 By emphasizing the anti-plaintiff factor
(not produce windfalls) in the absence of the pro-plaintiff factor (attract
competent counsel), the law segregated the balancing test in the
reasonableness analysis.140 Lower courts consider the pro-plaintiff purpose
136

This argument was arguably a result of the Hensley factors of reduction. See Hensley, 461
U.S. at 444 (Brennan, J., dissenting) (―The Court today emphasizes those aspects of judicial
discretion necessary to prevent ‗windfalls,‘ but lower courts must not forget the need to ensure
that civil rights plaintiffs with bona fide claims are able to find lawyers to represent them.‖).
137
477 U.S. 561, 580 (1986) (Brennan, J., plurality) (quoting S. REP. NO. 94-1001, at 6
(1976)).
138
While the Riverside plurality admitted avoiding windfalls was a legitimate competing
policy consideration—as evidenced in the legislative history—the Court explained windfall
avoidance was not an independent rationale but the natural result from applying the
reasonableness analysis. See Riverside, 477 U.S. at 580–81; see also Hensley, 461 U.S. at 446
(arguing a windfall is avoided in the very nature of the statutory scheme, saying, ―[y]et Congress
also took steps to ensure that § 1988 did not become a ‗relief fund for lawyers‘‖) (quoting Sen.
Kennedy). The Court had rejected the windfall argument numerous times before, insisting the
structural scheme of the lodestar ―by definition‖ prevented windfalls. See, e.g., Blanchard v.
Bergon, 489 U.S. 87, 96 (1989) (―[T]he very nature of recovery under § 1988 is designed to
prevent any such ‗windfall.‘‖); Blum v. Stenson, 465 U.S. 886, 895 (1984).
139
506 U.S. 103, 115 (1992) (―heed our admonition . . . fee awards under § 1988 were never
intended to ‗produce windfalls to attorneys.‘‖) (citing Riverside, 477 U.S. at 580); see also
Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 483 U.S. 711, 727 (1987) (deciding
that an enhancement based on a contingency fee would result in a windfall). The Court‘s
authority for characterizing windfall avoidance as an independent rationale under the
reasonableness analysis—as opposed to a part of a balancing test—is especially suspect. The
Court cites the plurality opinion of Riverside as its authority for this proposition, but the Court in
Riverside had rejected this very rationale, viewing windfall avoidance as a structural aspect of the
statute and not an independent rationale under the reasonableness analysis. See Riverside, 477
U.S. at 580.
140
The dissent in Hensley actually warned the court of this potential segregation between the
two balancing policies within the reasonableness test. Hensley, 461 U.S. at 442–44. The dissent
criticized the majority for ―emphasiz[ing] those aspects of judicial discretion necessary to prevent

ROUSE.FINAL

996

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

of the statute—a need to encourage litigation—at the threshold inquiry (or
outside the determination of a reasonable fee request)141 and the antiplaintiff purpose—avoidance of windfalls—in the reasonableness
analysis.142 This segregated approach places a greater emphasis on windfall
avoidance than presumably intended by Congress143 while compounding the
effect of the law‘s emphasis of anti-plaintiff factors of reduction under
Hensley.144 Thus, the emphasis of the reasonableness analysis, where the
law did not expressly balance the purpose of the statute in its analysis, is
directly contrary to the emphasis expressed in Blanchard, where the law did
balance the purpose of the statute in its analysis.145 The end result is an
analysis that produces anti-plaintiff leaning results.

D. Segregated Purpose Applied
Although the law indicates a lower court‘s consideration of the purpose
of the statute at the statutory threshold will uphold the pro-plaintiff purpose,
‗windfalls,‘‖ a legitimate policy concern of Congress found in S. REP. NO. 94-1011, at 6, but
failing to remind lower courts of the overall purpose of the statute, ―the need to ensure that civil
rights plaintiffs with bona fide claims are able to find lawyers to represent them.‖ Id. at 444.
141
See supra Part III.B (stating the low bar set for a party to gain prevailing party status effect
the general purpose of the statute). For examples of lower courts considering the purpose of the
statute outside the reasonableness analysis, see Thomas v. City of Tacoma, 410 F.3d 644, 648–49
(9th Cir. 2005) (noting the courts test for determining whether a special circumstance warranting a
denial of a fee request begins with considering the purpose of the statute) and Goad v. Macon
County, 730 F. Supp. 1425, 1431 (M.D. Tenn. 1989), considering the purpose of the civil rights
litigation as balanced against the effect of applying either federal or state law to determine
whether to set-off punitive damages.
142
See, e.g., Thomas, 410 F.3d at 648–49 (reversing a lower court for utilizing the windfall
analysis in considering whether there was a ―special circumstance‖—part of the statutory
threshold inquiry—justifying a denial of the fee request). In Thomas, the district court had
confused the Farrar test for nominal damages as part of a special circumstances exception instead
of a factor in the reasonableness analysis. Id. at 648.
143
While the Senate Report only mentions the need to avoid windfalls once, the Report
mentions the need to encourage civil rights litigation throughout the legislative history. See
generally S. REP. NO. 94-1001 (1976). From at least the perspective of the Senate Report—where
the windfall consideration takes its genesis—the courts generally overemphasize this
―congressional warning.‖ See, for example, the language in Beazer v. New York City Transit
Authority, 558 F.2d 97 (2d Cir. 1977), rev’d on other grounds, 440 U.S. 568, 571 (1979), a preHensley case noting the ―need to scrutinize attorneys‘ fee applications with an ‗eye to
moderation,‘ seeking to avoid either the reality or the appearance of awarding ‗windfall fees.‘‖ Id.
at 101 (quoted source omitted).
144
Cf. supra Part III.C.2 with Farrar, 506 U.S. at 114.
145
See supra Part III.C.1.

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

997

this seems a doubtful proposition. Arguably, reductions of initial fee
requests by thirty, forty, fifty percent or more can be as much of a
disincentive to an attorney taking future cases as a complete denial of a fee
request.146 For example, in Barrow v Greenville Independent School
District, the court cut attorney‘s fees by approximately two-thirds of the
prevailing party‘s initial request.147 The litigation, involving a civil rights
claim against the Greenville school district‘s superintendent, had become
very costly after stretching for more than five years.148 Upon determining
prevailing party status, the court considered the fee request by applying the
Hensley factors of reduction.149 The court first made percentage reductions
for problems with the attorneys‘ billing statements, finding errors of blockbilling and vague entries, which mandated a reduction in the requested
time.150 The court then considered the reasonableness of the entered time,
chipping away at the requested time spent for reasons of duplicative billing,
unnecessary time spent, and for time spent on claims which the court
determined ―did not further settlement of [the] case.‖151 Finally, the court
considered the requested hourly rate and reduced it accordingly.152 The
court did two things in its analysis. First, the court required the prevailing
party to prove the reasonableness of the request by requiring evidence
beyond that which supported a request under the lodestar.153 For instance,
at one point the court reduced 114.8 hours from one attorney‘s time and
70.1 hours from another predominantly because the prevailing party failed
to ―meet her burden of demonstrating why . . . [the claims were] necessary,‖

146
See, e.g., McKevitt v. Meriden, 822 F. Supp 78, 80–81 (D. Conn. 1993) (reducing the fee
request from $102,027.75, the amount supported by the evidence presented by the prevailing
party, to $11,800, approximately a 90% reduction).
147
See Barrow v. Greenville Indep. Sch. Dist., No. 3:00-CV-0913-D, 2005 U.S. Dist. LEXIS
34557, at *1, *3, *59 (N.D. Tex. Dec. 20, 2005) (unpublished opinion) (reducing the original fee
request of $ 2,093,521.91 to $ 631,293.00).
148
See id. at *1, *3.
149
Id. at *7–8.
150
Id. at *38–41, *58 (reducing for vagueness and block-billing). Courts will often reduce
requested hours or even fee awards for the practice of ―blocked billing.‖ See, e.g., Robinson v.
City of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir. 1998) (quoting Harolds Stores, Inc. v. Dillard
Dep't Stores, Inc., 82 F.3d 1533, 1554 n.15 (10th Cir. 1996)).
151
Barrow, 2005 U.S. Dist. LEXIS 34557, at *45–50.
152
Id. at *53–54 (deciding to reduce the hourly rates requested because the attorneys did not
state ―[they had] ever been paid at this rate‖).
153
See, e.g., id. at *9–10 (presuming, along with the defendant—the counsel opposing the fee
request—that the prevailing party bears the burden of proof when discussing block-billing).

ROUSE.FINAL

998

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

that is, reasonable.154 Second, the court required, albeit implicitly, the
prevailing party to support their claim with evidence sufficient to overcome
a presumption of reduction. For instance, although hourly rates were
supported by evidence, the court reduced the rate on the basis of what the
evidence was unable to prove, namely, that the attorneys had been paid this
amount before.155 Throughout its analysis, the court stayed true to the
Hensley presumption of reduction almost to a point of contradiction, at one
point reducing the prevailing party‘s time requested for legal research
because it was unreasonable in light of the requested hourly rate,156 yet
subsequently reducing the very rate that justified the reduction of the time
in legal research.157 Of course, the real issue is not that the court found
occasion to reduce the fee request, but that the law allowed the court to
reduce the fee request without once mentioning the purpose of the statute.158
In silence as to statute‘s purpose, the Hensley factors of reduction ensured
the award would not result in a Farrar windfall, ultimately supporting an
anti-enforcement, pro-establishment goal of limiting a fee award against an
individual working for the school district.

154
See id. at *50. The court did this again when it reduced one attorney‘s time spent by 3.9
hours for lack of evidence demonstrating how a press conference helped settle the case. Id. at
*45–46.
155
See supra note 152. The court did this by first discounting the prevailing party‘s attorneys‘
affidavits and expert testimony supporting their requested hourly rate with the defendant‘s
experts‘ affidavits supporting an hourly rate for the prevailing party‘s attorneys substantially less
than what the attorneys‘ requested. See Barrow, 2005 U.S. Dist. LEXIS 34557, at *53–54. If the
plaintiff‘s and defendant‘s affidavits cancelled each other out, the court based its reason to reduce
the fee award upon the prevailing party‘s failure to disprove the unreasonableness of the hourly
rate, that is, to overcome the presumption of reduction. See id. This analysis is consistent with
the Hensley reduction tendency, to carry a presumption in favor of a reduction and place a burden
on the prevailing party which extends beyond just a burden of production. See supra Part III.C.2.
156
The rationale was that higher fee requesting attorneys should not have to spend as much
time doing legal research. Barrow, 2005 U.S. Dist. LEXIS 34557 at *37–38.
157
See id. (making a 5% reduction in time requested in legal research because it was
unreasonable in light of the requested hourly rate). This reduction was made before the court had
reduced the requested hourly rate. See id. This gives the impression that the court used the higher
requested hourly rates as a justification for reducing the requested time under legal research rather
than the rate actually found reasonable for the attorneys‘ services. See id. at *38, *53–54.
158
For example, the court did not consider whether this net result would create a Blanchard‘s
disincentive, net results that undermine the purpose of the statute as a whole. See Blanchard v.
Bergeron, 489 U.S. 87, 95–96 (1989); supra Part III.C.1.

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

999

IV. A BURDEN-SHIFTING ANALYSIS
While the analysis of § 1988 predominantly leans pro-plaintiff, the
reasonableness analysis does not. The combination of the law‘s failure to
require the lower courts to expressly or procedurally balance the purpose of
the statute in the reasonableness analysis not only fails to balance lower
courts‘ anti-enforcement tendencies, but, to some extent, encourages them,
which is counter to the fundamental purpose of § 1988. But even a solution
requiring lower courts to consider the purpose of the statute when making
the reasonableness determination will not necessarily balance the antiplaintiff tendencies in the reasonableness analysis or the anti-enforcement
goals espoused by some lower courts.159 Instead, as the Supreme Court
indicated in both Blanchard v. Bergeron and City of Riverside v. Rivera, a
proper balancing of the statute‘s purpose will only be achieved by altering
the structure of the reasonableness analysis itself.160

A. The Burden-Shifting Analysis
This Comment suggests a prevailing party argue that a lower court
should adopt a burden-shifting approach to determine a reasonable fee
request. First, the prevailing party must present evidence sufficient to
support a lower court‘s finding of the lodestar amount by supporting the fee
request through adequate documentation.161 If the prevailing party meets
this evidentiary burden,162 the presumption is that the requested fee is
159

For instance, in Rock Against Racism v. Ward, No. 85 Civ. 3000-CSH, 1989 U.S. Dist.
LEXIS 14869, (D.N.Y. Dec. 7, 1989), though the judge explicitly considered the purpose of the
statute and determined his decision would undermine the purpose of the statute, the judge
determined the circumstances at hand mandated a reduction in the fee request. See supra notes
73–75 and accompanying text.
160
These two cases state the windfall analysis is not a separate factor to be considered but
avoided by the procedure required as part of the statutory scheme. Blanchard, 489 U.S. at 96
(1989); City of Riverside v. Rivera, 477 U.S. 561, 580–81 (1986). Hence, the statutory analysis
itself is the balancing test.
161
See supra note 121.
162
Since the law is ambiguous as to what meets the evidentiary standard, establishing when
the prevailing party meets their evidentiary burden might begin as a point of advocacy before a
court. See supra Part III.C.2. This Comment contends focusing advocacy on this point will help
lower courts draw brighter lines so a prevailing party might be better equipped to meet their
evidentiary burden. However, ultimately the evidentiary burden should be a pre-determined and
an easily met standard. See supra note 133 and accompanying text. The real focus a reasonable
fee determination should not be upon whether a party meets their evidentiary burden, but
whether—as Hensley suggests—the requested hourly rate or hours billed are reasonable. This is

ROUSE.FINAL

1000

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

reasonable and the burden then shifts to the one opposing the initial fee
request to rebut this presumption.163
If the fee request remains
unchallenged, the court should ordinarily presume the fee is reasonable.164
Should the opposing party contest the evidence establishing the lodestar, the
opposing party must specifically allege which entries in the billing
statement are unreasonable or develop concrete reasons why the alleged
prevailing market rate is unreasonable.165 Because the policy behind § 1988
favors recovery of attorney‘s fees adequate to attract adequate counsel, the
court should resolve close disputes in favor of the prevailing party. If the
court determines the opposing party rebutted the presumption of
reasonableness, the court should then consider whether to reduce the
amount found under the lodestar again, resolving its doubts in favor of the
prevailing party.
This procedure corrects the anti-plaintiff leaning tendencies of the law
on several levels. First, the procedure will help curve anti-enforcement
ideology from directly influencing a lower court‘s determination of the fee
request. For example, in Rock Against Racism, this procedure would have
required the lower court to explain why the city‘s inability to pay the full
fee request overcame the lower court‘s presumption of awarding fee
requests supported by the evidence.166 Hence, this procedure would have
the point where parties should advocate their positions and where the burden shifts in favor of the
fee-petitioning party.
163
See Watkins v. Vance, 328 F. Supp. 2d 27, 31–32 (D.D.C. 2004) (―Once the plaintiff has
provided such information, there is a presumption that the number of hours billed and the hourly
rate are reasonable, and the burden shifts to the defendants to rebut plaintiff's showing of
reasonable hours and reasonable hourly rates for attorneys of this skill level and experience for
this kind of case‖).
164
See Beazer v. N.Y. City Transit Auth., 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other
grounds, 440 U.S. 568, 571 (1979) (rejecting the argument that fees were excessive because no
challenge had been made by the defendant to contest the prevailing party‘s itemized costs).
165
―In the normal case the Government must either accede to the applicant's requested rate or
provide specific contrary evidence tending to show that a lower rate would be appropriate.‖
Covington v. Dist. of Columbia, 57 F.3d 1101, 1109–10 (D.C. Cir. 1995) (quoting Nat‘l Ass‘n of
Concerned Veterans v. Sec‘y of Def., 675 F.2d 1319, 1326 (D.C. Cir. 1982)) (emphasis added).
This is at least similar to what the lower courts must demonstrate under Hensley. See supra note
122 (noting lower courts must provide clear explanations for their reductions).
166
Arguably, because the parties in Rock reached a determination of reasonable fee amount by
settlement, the court should have done this anyway, since the agreed amount of the fee request
was presumptively reasonable under Hensley. See Hensely v. Eckerhart, 461 U.S. 424, 437
(1983) (majority op.) (noting ―[i]deally, of course, litigants will settle the amount of a fee‖ and the
prevailing party‘s burden to submit evidence is only necessary when a settlement or agreement is
not possible); see also supra notes 67, 133.

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

1001

exposed the true rationale for the court‘s reduction, giving the prevailing
party a better opportunity to demonstrate to the lower court the use of
inappropriate factors in determining a reasonable fee amount. Second,
burden-shifting helps prevent lower courts from inadvertently placing a
double burden (burden to prove reasonableness and disprove
unreasonableness) on the prevailing party in the reasonableness analysis,
resulting in more a pro-plaintiff leaning analysis. For example, in Barrow v
Greenville the analysis used to reduce the requested hourly rate would not
have been supportable.
The requested hourly rate was reduced
predominately because the prevailing party failed to show it had been paid
this amount before.167 Under the burden-shifting analysis, because the party
had supplied sufficient evidence to support the requested rate, the court
would presume the fee request was reasonable.168 Hence, the prevailing
party‘s inability to disprove unreasonableness—that the attorneys could not
show they had been paid the amount before—would not be a sufficient
reason to reduce fee requests supported by sufficient evidence, but would
require the defendant to affirmatively why the evidence that the attorneys
had not been paid this amount before made the request unreasonable.169
This would likewise apply to the occasions the court reduced the fee request
because of the prevailing party‘s inability to prove reasonableness. 170
However, the court‘s analysis would likely remain unchanged if the
prevailing party were determined to have not supported their fee request by
evidence sufficient to support the court‘s finding of reasonableness.171 The
prevailing party‘s failure to support a requested hourly rate with sufficient

167

See supra notes 152, 155 and accompanying text.
Barrow v. Greenville Indep. Sch. Dist., No. 3:00-CV-0913-D, 2005 U.S. Dist. LEXIS
34557, at *52–53 (N.D. Tex. Dec. 20, 2005) (unpublished opinion). This Comment presumes the
hourly rates met the evidentiary burden because the Barrow court reduced the rates on the basis of
advocacy and not an easily definable evidentiary standard. See id. This presumption is not
intended to comment on what evidence is necessary to support a finding of a prevailing market
rate. See Covington v. Dist. of Columbia, 57 F.3d 1101, 1109–10 (D.C. Cir. 1995) (discussing
different ways a prevailing party may meet its evidentiary burden to establish a prevailing market
rate).
169
The defendant seems to attempt this through affidavits, but the court treats the evidence as
merely canceling out the affidavits presented by the prevailing party. See supra note 155.
170
See, e.g., supra note 154 and accompanying text.
171
In the case, the court may cite an absence of evidence as justification for reducing the
hourly rate or fee request. See Parker v. Town of Swansea, 310 F. Supp 2d 376, 390 (D. Mass
2004) (awarding a reduced hourly rate because the prevailing party ―fail[ed] to meet his burden of
providing information sufficient to enable this court to set a rate‖).
168

ROUSE.FINAL

1002

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

evidence to establish a prevailing market rate172 or sufficiently recording
time to allow the lower court to distinguish between distinct claims goes to
the evidentiary burden of the prevailing party.173 Thus, the percentage
reductions for block-billing and vague entries would likely stand under a
burden-shifting analysis, since these findings impeded the lower courts‘
ability to distinguish between distinct claims and determine whether the
evidence supported a finding of a reasonable fee request.174
Though this procedure is not remarkably different from the procedure
applied by the lower court in Barrow, the subtlety of defining when a party
meets its burden and defining what this burden entails could create
remarkably different results.175 For instance, excluding the previously
mentioned reductions made because of the prevailing party‘s failure to meet
their evidentiary burden, if all the reductions that were made because of the
prevailing party‘s failure to prove the reasonableness (or disprove the
unreasonableness) of the request were resolved according to the burdenshifting presumption—in favor of the prevailing party—the attorneys in
172

Of course, if the Barrow court‘s evidentiary burden required the prevailing party to show
previous hourly rates charged, then even under the burden-shifting analysis, the prevailing party
would have failed to meet her evidentiary burden to support the requested hourly rate. The
rationale used by the Barrow court to make reductions is distinguished because the court made the
reductions on the basis of reasonableness—as a response to defendant‘s argument against the
rate—and not for a pre-determined, easy to meet evidentiary burden required under Hensley. See
Barrow, 2005 U.S. Dist. LEXIS 34557, at *52–53.
173
See supra notes 122–33 and accompanying text. See also, Barrow, 2005 U.S. Dist. LEXIS
34557, at *10–13 (disfavoring block-billing because it impedes the courts ability to distinguish
claims, part of the evidentiary burden announced in Hensley); id. at *31–32 (citing Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983) for the proposition that facially unreliable documents fail to
meet the prevailing party‘s evidentiary burden); id. at *38–39 (citing the Hensley evidentiary
burden sentence to support a reduction for vague entries).
174
Hence, the court‘s following reductions would likely stand under a burden shifting
analysis: a 20% and 10% reduction in time for block billing, id. at *12–15; a 20% reduction for
facially unreliable records, id. at *27–31; a 20% reduction for vague entries, id. at *40; and a one
hour reduction for clerical tasks, since as a matter of law clerical tasks are not includable as part of
one‘s attorneys‘ fees, id. at *42.
175
For example, the court in Barrow noted that lower courts do not presume that block-billing
justifies a complete denial of a fee request, which would liken block-billing to a special
circumstances exception. See id. at *17–18. But the pervasive use of block-billing and vague
entries might equate to a prevailing party‘s complete failure to meet their evidentiary burden,
justifying a denial of a fee request. See id. at *20–21 (citing Walker v. U.S. Dep‘t. of Hous. &
Urban Dev., 99 F.3d 761, 773 (5th Cir. 1996)); but see Walker v. City of Mesquite, 313 F.3d 246,
251 (5th Cir. 2002) (holding a prevailing party failing to adequately meet the evidentiary standard
does not remove the court‘s discretion to award fees considering the circumstances).

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

1003

Barrow would have recovered almost double what was awarded.176 This
amount would not presumptively result in a windfall because even this
award is almost half the amount initially requested.177 Further, nothing
would have prevented the lower court from reducing the award further after
finding the defendant rebutted the presumption in favor of the prevailing
party.178 Hence, this procedure merely helps align the law with the
statutory purpose. The need for § 1988 to award fees capable of providing
an incentive for prevailing parties to attract adequate counsel is met by
establishing a presumption in favor of the prevailing party recovering its
initial fee request. Meanwhile, the need to avoid windfalls is obtained by
preserving the lower courts‘ discretion to determine what evidence is
needed to support an initial fee request and when the presumption in favor
of that request is rebutted.179
176

The following hours would be added back to attorney Bundren‘s time as presumptively
reasonable under the lodestar: 185.19 hours from the 5% reduction for time spent on legal
research and 23.4 hours for time spent on a moot court session, CLE training, and with the media.
Barrow, 2005 U.S. Dist. LEXIS 34557, at *43–44, *46, *58. This will increase Bundren‘s hours
from 1562.49—the total number of approved hours by the Barrow court—to 1771.08. See id. at
*58. Bundren also met his evidentiary burden in requesting an hourly rate by submitting
affidavits and other evidence (such as extensive experience in the area of litigation) to support the
claimed rate. See supra note 167–69 and accompanying text. Hence the court would multiply the
time requested by the hourly rate originally requested by attorney Bundren ($ 450) resulting in a
lodestar of $ 796,786 rather than $ 468,742.00. See Barrow, 2005 U.S. Dist. LEXIS 34557, at
*52, *58. Concerning attorney Shackelford, the lower court would add 28.41 hours for the 5%
reduction for unreasonable legal research and the 23.4 hours from the reduction for unreasonable
time spent in moot court to the 425.66 hours approved by the Barrow court to bring Shackleford‘s
total to 477.47 hours. See id. at *43–44, *58–59. The court would multiply this by the hourly rate
originally request ($ 400) resulting in a lodestar of $ 190,988 instead of $ 106,415.00. See id. at
*59. The court would add back 116.9 hours spent in attorney Sasser‘s time—reduced for
duplicative billing—resulting in 220.6 hours. See id. Multiplying Sasser's hours by the hourly
rate of $ 205.00 yields a lodestar fee of $ 45,223 instead of $ 21,258.50. The court would add
86.9 hours to attorney Saenz‘s time—reduced for duplicative billing—resulting in 286.2 hours.
See id. Multiplying Saenz's hours by the hourly rate of $ 175.00 yields $ 50,085 instead of $
34,877.50. Thus, under the burden switching analysis, a party could arguably recover $1,083,082,
about 1.7 times greater than the $ 631,293.00 recovered. See id. at *59.
177
The number initially requested was $ 2,093,521.91. See id. at *3; see also supra note 160
(noting that windfall avoidance is in the statute‘s scheme to determine reasonableness).
178
See, e.g., Barrow, 2005 U.S. Dist. LEXIS 34557, at *43–44 (reducing hours requested for
a moot court session because attorney was experienced, thus not needing as long to prepare and
had already participated in one moot court session).
179
The presumption functionally realigns the law to the original view of windfall analysis,
while allowing lower courts to utilize a Farrar‘s windfall avoidance approach in their analysis.
See supra Part III.C.3.

ROUSE.FINAL

1004

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

[Vol. 59:3

B. Support for a Burden-Shifting Analysis
There is ample support for a court to adopt this procedure. First, the law
affords lower courts wide discretion to determine a reasonable fee
amount.180 As the Court in Hensley suggests, the discretion of the lower
courts is only limited by express holdings of the Supreme Court.181 Since
the Supreme Court has not expressly rejected this burden-shifting analysis,
presumably lower courts may adopt this procedure, as demonstrated by both
the D.C. and the Seventh Circuits.182 Second, this burden-shifting analysis
does not substantially change the law as applied. For instance, since the
ultimate burden is upon the court to determine whether a fee is reasonable
the burden-shifting analysis discourages lower courts from requiring the
prevailing party to meet a higher burden than what is required to establish
the lodestar,183 and from forcing the prevailing party to overcome a
presumption of reduction.184 In addition, the law already requires a similar
burden-shifting approach once the lodestar has been determined.185 For
180

See supra notes 7, 32 and accompanying text.
See supra note 75 (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
182
Neither circuit fully explains their rationale for adopting such an approach, but instead just
announcing the rule and moving forward. See Watkins v. Vance, 328 F. Supp. 2d 27, 31–32
(D.D.C. 2004); but see supra note 123 (citing a case which says the burden of persuasion and
production is always with the prevailing party). The seventh circuit shifts the burden with respect
to determining the market rates. See, e.g., Krislov v. Rednour, 97 F. Supp. 2d 862, 867 (N.D. Ill.
2000) (citing People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1313 (7th Cir. 1996));
see also Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 554–55 (7th Cir. 1999) and
Johnny's Icehouse, Inc. v. Amateur Hockey Ass'n of Ill., No. 00 C 7363, 2001 U.S. Dist. LEXIS
11671, at *15 (N.D. Ill. Aug. 2, 2001) (unpublished opinion) (citing Batt v. Micro Warehouse,
Inc., 241 F.3d 891, 894 (7th Cir. 2001)).
183
See supra notes 122, 123 and accompanying test; see also Coutin v. Young & Rubicam
P.R., Inc., 124 F.3d 331, 337 (1st Cir. 1997) (―[A] fee-awarding court that makes a substantial
reduction [in the lodestar] . . . should offer reasonably explicit findings, for the court, in such
circumstances, ‗has a burden to spell out the whys and wherefores.‘‖) (quoting Brewster v.
Dukakis, 3 F.3d 488, 493 (1st Cir. 1993); Spellan v. Bd. of Educ., 59 F.3d 642, 646 (7th Cir.
1995) (―We have no doubt that the district court has an independent obligation to scrutinize the
legitimacy of such a submission.‖) (emphasis added); Cruz v. Beto, 453 F. Supp 905, 908 (S.D.
Tex 1977), aff’d, 603 F.2d 1178 (5th Cir. 1979) (―[T]he Court is not primarily dependent upon
supporting time records of counsel . . . as a means of assessing the correctness of the estimates
contained in counsel's affidavits, but can rely chiefly on its own observations and experience in
this particular litigation.‖) (emphasis added).
184
See supra notes 134, 135 and accompanying text.
185
Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986)
(―[If] the applicant for a fee has carried his burden of showing that the claimed rate and number of
hours are reasonable, the resulting product is presumed to be the reasonable fee contemplated by
181

ROUSE.FINAL

2007]

8/4/2010 10:26 AM

ATTORNEYS’ FEES AND CONSERVATISM

1005

instance, some courts have implicitly exercised a burden-shifting analysis
when the lodestar, or initial fee request, is uncontested.186 Even the
Supreme Court has exercised a burden-shifting analysis in a similar
situation.187 Lower courts have shifted the burden to the defendant when
the prevailing party and defendant enter into a settlement agreement,188 a
presumptively reasonable amount equated to the lodestar.189 Thus, the law
not only allows for a burden-shifting analysis to be used, the law implies
this analysis is correct. Of course, without expressly adopting the burdenshifting approach, these implied burden-shifting examples remain subject to
the anti-enforcement influences mentioned earlier.190 Only an express
adoption of the burden-shifting analysis will help correct the imbalance,
ensuring the purpose of § 1988 is applied by the lower courts.
§ 1988.‖) (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)) (emphasis in original). See also
supra note 122.
186
Beazer v. N.Y. City Transit Auth., 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other
grounds, 440 U.S. 568, 571 (1979) (rejecting the argument that fees were excessive because no
challenge had been made to prevailing party‘s itemized costs).
187
The Supreme Court implicitly stated the burden shifts to the defendant upon the plaintiff
satisfying their evidentiary burden when the Court declined to hear arguments concerning the
reasonableness of a fee request because the party opposing the fee request had failed to submit
―any evidence challenging the accuracy and reasonableness of the hours charged or the facts
asserted.‖ See Blum, 465 U.S. at 892 n.5 (internal citations omitted).
188
When defendant settled civil rights case on merits but the settlement failed to address
attorneys‘ fees, the burden was on defendant to show settlement intended to cover attorney‘s fees.
See Ellis v. Univ. of Ka. Med. Ctr., 163 F.3d 1186, 1201 (10th Cir. 1998).
189
See supra notes 67, 133, 166.
190
Compare the 7th Circuit‘s approach—a Circuit that has adopted a burden-shifting
analysis—in Spellan v. Board of Education to the 2nd Circuit‘s approach—a Circuit that has not
adopted a burden-shifting analysis—as represented in Rock Against Racism to see how the
rationale supporting the burden-shifting analysis makes a procedural difference. Both cases
considered how to handle a lower court‘s independent challenge to an otherwise presumptively
reasonable fee requests—an uncontested fee request in Spellan and a settlement agreement in
Rock. See Rock Against Racism v. Ward, No. 85 Civ. 3000-CSH, 1989 U.S. Dist. LEXIS 14869,
*6–7 (D.N.Y. Dec. 7, 1989); Spellan v. Bd. of Educ., 59 F.3d 642, 646 (7th Cir. 1995). While
Rock used an ―independent investigation‖ employing anti-enforcement ideology to reduce the
claim without any meaningful judicial review, Spellan required the prevailing party have an
opportunity to contest results obtained from the lower court‘s use of a similar independent
investigations. Compare Rock, 1989 U.S. Dist. LEXIS 14869 at *6–7 with Spellan, 59 F.3d at 646
(noting while the lower courts have discretion to independently investigate claims for attorney
fees, ―if such an independent investigation leads the district court to question certain aspects of the
petition that have not been questioned previously by the opposing party, the party submitting the
petition ought to have the opportunity to address the concerns of the district court before a final
ruling is made on the matter‖).

ROUSE.FINAL

1006

8/4/2010 10:26 AM

BAYLOR LAW REVIEW

V.

[Vol. 59:3

CONCLUSION

The purpose of § 1988 has and always will be a pro-plaintiff law
designed to provide incentives for attorneys. Anti-establishment tendencies
and an anti-plaintiff development of the law potentially threatens § 1988‘s
otherwise pro-plaintiff purpose. The proposed solution of a burden-shifting
analysis will assist the lower courts in applying the pro-plaintiff purpose of
§ 1988 to the reasonableness analysis. Although the procedure does not
guarantee a change to any specific net result, the procedure does ensure the
result will be arrived at through a proper construction and application of the
statute‘s purpose. In this way, § 1988 can balance the anti-establishment
ideology in the courtroom and the anti-plaintiff tendencies in the law.