The past few years, and the last year in particular, have seen dramatic shifts in one of the most hotly contested, and crucially important, areas of public interest law: the award of attorneys fees to public interest litigants. This process of development has had to overcome two major barriers, the traditional "American rule" under which winning parties normally do not receive counsel fees,¹ and the federal statutory prohibition against awards of counsel fees against the government. In one case, environmentalists opposing federally approved highway construction received not only counsel fees, but also reimbursement for expert witnesses; in another, Indians were compensated for suing the government to vindicate tribal rights. The cost of suing for a mental patient's release has been assessed against a state government; the Clean Air Act's provision allowing recovery of attorneys fees in district court cases has been construed to permit similar recovery in cases which must by statute be brought in the Court of Appeals; and a federal district court in Texas has approved a grant of counsel fees to environmentalists although they lost on the merits.

The basic statutory prohibition against grants of attorneys fees is contained in 28 U.S.C. §2412, which authorizes a judgment for costs, "not including the fees and expenses of attorneys," in suits against a government official acting in his official capacity. Congress has, however, carved out several specific exceptions. The Civil Rights Act of 1964 included a provision authorizing awards of counsel fees to the "prevailing party" in actions brought under the statute. The Clean Air Act Amendments of 1970 permits a grant of fees to "any party."