Recent ELR Comments have discussed the gradual erosion in the past few years of the "American rule" barring awards of counsel fees to successful litigants.¹ The appearance of public interest legal organizations has accelerated that trend, as the relief sought is usually injunctive, and injunctions do not pay the rent. Beginning with the Civil Rights Act of 1964, Congress has included provisions authorizing grants of counsel fees in several pieces of legislation that depend on citizens' initiative for their implementation and enforcement. The Clean Air Act, the Federal Water Pollution Control Act Amendments of 1972, and the Noise Control Act all state that in any final order on a citizen's suit brought pursuant to those statutes, the court may award the costs of litigation, including reasonable attorneys' fees, to "any party," when it deems such an award appropriate.²

At the same time, the courts have been increasingly willing to grant counsel fees even without statutory authorization, utilizing the three exceptions to the American Rule. As recently restated by the Supreme Court in Hall v. Cole,³ these are: cases of "obdurate behavior" by the losing party; cases in which the successful litigation has made a "common fund" available to a group similarly situated to the plaintiff, or has conferred a "common benefit" on it, and an award of fees against the defendant is the best means of spreading the cost of litigation among the benefitted group; and cases in which the plaintiffs have successfully vindicated an important public policy of the United States, and one which the nation depends on the private litigant to enforce as a "private attorney general."