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Attorney Fees Awards in Public Interest Litigation: Judicial and Legislative Developments in California

February 1978

Citation: ELR 10025

The general rule in the United States is that the prevailing party in a lawsuit may not recover his attorney fees from the loser unless a contractual or statutory provision explicitly allows such an award. The Supreme Court's 1975 decision in Alyeska Pipeline Service Co. v. Wilderness Society1 scuttled the incipient development of the "private attorney general" doctrine as a rationale for attorney fees awards to successful "public interest" plaintiffs in federal court in the absence of statutory authorization.2

But the issue of attorney fees awards is hardly a dead letter. The Court's ruling in Alyeska was based on the federal court costs statute,3 and the decision therefore does not prohibit state courts from using the private attorney general doctrine as a basis for fees awards. Nor did Alyeska foreclose recovery of attorney fees in either federal or state courts under the other well-recognized "bad faith" and "common benefit" exceptions to the general American rule, although it attempted to circumscribe the instances in which the latter could be applied.4 This attempted limitation, along with the statutory prohibition of awards against the federal government itself5 and the fact that federal court decrees awarding fees against states may be prohibited by the Eleventh Amendment,6 has served to curtail federal judicial awards of fees under these alternative doctrines, however.7

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