CIVIL RIGHTS PRACTICE

Civil rights practice, as discussed herein, refers to litigation brought pursuant to federal civil rights legislation. Many civil rights statutes exist, some of modern origin and some dating from the reconstruction era following the civil war. The statutes protect individuals from deprivations of constitutional rights by government and from various kinds of discrimination by private individuals. section 1983, title 42, u. s. code, passed in 1871, is the primary vehicle for litigating deprivations of constitutional rights. antidiscrimination legislation, passed in the 1960s and later, creates protection from private discrimination on certain grounds in particular contexts, such a public accommodations, employment, and housing. Although the structure and scope of these statutes differ, they are all enforced primarily through private litigation for damages or injunctive relief. The different statutes may also authorize other enforcement mechanisms—criminal prosecutions, civil actions, or administrative enforcement by the government—and these can play an important role in effectuating the purposes of the legislation. But given constraints on government resources, private enforcement is essential.

There are many substantive hurdles to recovery under the various civil rights statutes, some imposed by Congress and many by the Supreme Court in its decisions. Limitations on constitutional rights such as the right of privacy or due process of law, stringent proof requirements, and defenses such as absolute and qualified immunity, are but a few examples of the challenging issues a litigant may confront. Because of the complexities in civil rights practice, effective private enforcement usually requires that the plaintiff retain an attorney. In a small number of cases, the plaintiff can join with others in a class action lawsuit, but most likely, the plaintiff as an individual will seek representation.

In 1976, Congress realized that the prevailing American rule, in which each party bears its own attorneys' fees, was a significant impediment to private enforcement of civil rights legislation. In that year, Congress enacted the Attorneys' Fees Awards Act, which permitted "prevailing parties" in civil rights actions to recover their attorneys' fees from the losing parties. In practice, this fee-shifting favors plaintiffs much more than defendants, despite the neutrality of the language. The legislative history of the Attorneys' Fees Awards Act reveals that Congress was aware that civil rights cases often present issues with less monetary value than other types of litigation an attorney might undertake. Congress believed that in the absence of fee-shifting, civil rights plaintiffs with low damages or claims in which predominantly equitable remedies are sought would lack the means to vindicate their rights. The difficulty and the economics of their cases would make them unable to compete with litigants presenting other types of legal work.

Since passage of the Attorneys' Fees Awards Act, the Court has decided numerous cases interpreting the statute. Although a number of the Court's decisions have bolstered recovery of fees, some of the Court's decisions have undercut the incentives the Fees Act gives attorneys to represent civil rights plaintiffs. One example of such a decision is Evans v. Jeff D. (1986). There, the Court held that a waiver of fees as part of a settlement is consistent with the purposes of the Fees Act. The decision has affected the strategies of both civil rights plaintiffs' attorneys and defense attorneys. Plaintiffs' attorneys practicing in nonprofit settings are vulnerable to requests for fee waivers, because the rules by which they operate often prevent them from entering into agreements that give their clients a disincentive to waive their fees. In the private sector, plaintiffs' attorneys have protected themselves by fee agreements that provide for a contingent recovery or payment of an hourly fee in the event of a settlement that includes a waiver. Defendants commonly make lump sum offers, out of which fees will be paid. Often the result is a partial waiver of fees. Because most cases ultimately are settled, the result of Jeff D. is that civil rights lawyers who seek to make a living at the practice must take cases with damages high enough to compensate the attorney in the event of settlement. Cases with lower predictable damages—for example, those based on constitutional violations or adverse employment actions against blue-collar or temporary workers, or cases involving equitable relief—are not so likely to be accepted by attorneys.

City of Burlington v. Dague (1992) is another case that has sapped the vitality of certain types of civil rights practice. By this decision, the Court withdrew the discretion of judges to award fees in addition to the hourly rate. Unfortunately, some types of civil rights litigation are so expensive that compensation for the hours spent does not begin to pay for the litigation. In the voting rights area, for example, even assessing the viability of a case involves significant social science research. Studies can cost in the tens of thousands of dollars. Plaintiffs cannot afford these costs, and so the attorney must forward them. Without the possibility of extra compensation for the financial risks undertaken by the attorney, there is a significant disincentive to litigate those cases. Some voting rights litigation is handled by nonprofit or private organizations, whose own resources defray costs; also, the U.S. Department of Justice plays a significant role in voting rights litigation because of the department's preclearance responsibilities. However, if a plaintiff does not succeed in placing the case with a nonprofit firm or the Department of Justice for litigation, it is extremely difficult to obtain private counsel. The disincentives to private representation narrow the scope of voting rights issues that are addressed by litigation.

Because civil rights legislation encompasses so many different types of claims, the practice areas differ greatly. Just as some types of civil rights practice have been hard hit by the decisions discussed above, other practices have seemingly been unaffected and are thriving. The Court has not focused on the heterogeneity of civil rights cases as it has decided issues affecting fees and damages. Unless the Court takes account of the varying impacts of its decisions on certain types of practice, the incentives promised by the Fees Act will be greatly diluted.

Julie Davies
(2000)

Bibliography

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Landsberg, Brian K. 1997 Enforcing Civil Rights, Race Discrimination and the Department of Justice. Lawrence: University Press of Kansas.

Schwab, Stewart J. and Eisenberg, Theodore 1987 The Reality of Constitutional Tort Litigation. Cornell Law Review 72:641–695.

——1988 Explaining Constitutional Tort Litigation: The Influence of the Attorneys Fees Statute and the Government as Defendant. Cornell Law Review 73:719–781.

Selmi, Michael 1996 The Value of the EEOC: Reexamining the Agency's Role in Employment Discrimination Law. Ohio State Law Journal 57:1–64.

Wasby, Stephen L. 1995 Race Relations Litigation in an Age of Complexity. Charlottesville, Virginia: University Press of Virginia.