Fee shifting in Sup Ct

After winning against California regarding children’s access to violent games, the prevailing parties are now seeking fees of over $1 million from the Supreme Court.

SCOTUS Blog explains,

Ordinarily, the custom in American law is for each side to pay its own legal fees in a lawsuit.  However, federal laws, including a civil rights law relied upon in this new motion, sometimes allow a “prevailing party” to recover its fees from the losing side.  The Supreme Court’s own Rules do not specifically provide for such fee-shifting.

The standard manual on Supreme Court practice, popularly known as “Stern and Gressman,” however, says explicitly that these federal fee-shifting laws “may encompass attorneys’ fees incurred in connection with Supreme Court cases.”  The manual cites a 1970 precedent, Perkins v. Standard Oil, as directing a lower court — when the case was returned there — to consider a possible fee shift for the Supreme Court work.

Fee-shifting requests are very common in lower courts, especially in civil rights cases.  One theory behind such awards is that attorneys should be encouraged to take on legal cases that might advance civil rights, when such cases may not produce a very large dollar verdict.  Another theory is that the government, which normally enforces civil rights laws, has only limited legal resources and can use the aid of so-called “private attorneys general.”

Definitely something that we want to track as the Supreme Court decides.



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Filed under Appellate, courts, Supreme Court

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