As noted in an earlier ELR Comment,¹ the law regarding awards of attorneys fees to public interest litigants has moved rapidly in the last several years away from the traditional "American rule," which bars the recovery of such fees by a successful litigant. Courts have become increasingly willing to exercise their equitable discretion and award attorneys fees in circumstances where there has been obdurate behavior by the losing party, where the facts present a common fund situation among a large class of plaintiffs, or where the plaintiff is acting as a private attorney general.

But while the American rule serves as the only barrier to an award of counsel fees against a losing private party, there are two further obstacles to the granting of such awards against governmental agencies and officials. 28 U.S.C. §2412 authorizes a judgment for costs, "not including the fees and expenses of attorneys," in suits against a federal official acting in his official capacity, and this section has been held to bar grants of attorneys' fees in those cases where there is no specific statutory authorization for such an award.² In addition to this statutory prohibition, the Eleventh Amendment limits the power of the federal courts to issue judgments binding the sovereign states without their consent.³ Although the record of attorneys' fees awards against state agencies and officials in the absence of state consent in the form of an explicit statutory authorization is by no means sparse, the recent rulings of the Sixth Circuit in Jordon v. Gilligan⁴ and the Fifth Circuit in Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department,⁵ threaten to preclude any further developments along this line.