Attorney's Fees and Buckhannon

How the Supreme Court (with help from the Fourth Circuit) erected a formidable barrier to certain civil rights litigation

The fundamental rights protected by the Constitution and civil rights statutes have little meaning unless those rights can be enforced in court. But those most vulnerable to civil rights violations by the government, employers, or landlords are typically those who are least able to pay for attorney. And civil rights cases are often not amenable to contingency arrangements. In some cases, plaintiffs seek not monetary damages but an injunction against an unlawful statute or policy. In other cases, the plaintiff’s injury – say, being stopped by the police on the basis of race, or being chilled in the exercise of free speech – is not concrete enough to yield substantial damages. The doctrines of qualified immunity and sovereign immunity often preclude any monetary damages in many cases against government actors. As a result, except in cases of the most flagrant abuses resulting in serious injury to person or property, it is plaintiffs with meritorious civil rights claims who may not be able to find an attorney.

Read the full article in The Journal of the Virginia Trial Lawyers Association, Volume 20 Number 4, 2009.

Printed with permission of The Journal of the Virginia Trial Lawyers Association.