Today the U.S. Supreme Court issued decisions in three civil cases and no criminal cases. However, all three of the civil cases have some interesting and potentially relevant aspects.
Attorney's Fees. Kirtsaeng v. John Wiley & Sons, Inc., No. 15-375, is a copyright case on the question of attorney's fees for a prevailing defendant. The unanimous decision by Justice Kagan reaffirms the holding of Fogerty v. Fantasy, Inc. (1994)* that the attorney's fee provision of the copyright law is to be applied symmetrically between prevailing plaintiffs and prevailing defendants. The Court agrees with the lower courts that the reasonableness of a party's position is a weighty factor against awarding fees against that party, rejecting Kirtsaeng's position that a party bringing or defending a suit that clarifies an unsettled question -- and prevailing -- should be rewarded with an award of attorney's fees. After all, if it's a close call then no one can predict at the outset which side will prevail, and "double or nothing" on attorney's fees will not necessarily produce more such clarifying cases.
On the other hand, the Court says that reasonableness of the nonprevailing party's position is not necessarily determinative, and a party with a reasonable position might be ordered to pay fees for other reasons such as litigation misconduct. The Court remands to ensure that other factors have been properly considered.
Now here is the relevance to the topic of this blog. How are civil rights suits under 42 U.S.C. §1983 -- especially those against law enforcement officers and agencies -- any different? The fee-shifting statute, §1988, is completely symmetrical on its face, but it has been construed [misconstrued, IMHO] by the Supreme Court to make attorney's fee awards nearly automatic for prevailing plaintiffs and nearly impossible for prevailing defendants. Why? Once upon a time, there may arguably have been an asymmetrical need to encourage "pushing the envelope" lawsuits by plaintiffs, but even assuming that for the sake of argument, the time is long behind us. Today the envelopes have been pushed too damn far already, and there is no good reason to encourage further pushing. Well-funded organizations that bring such lawsuits against police and correctional authorities should have to pony up when their suits are baloney and should bear their own fees when the question is close.
The Supreme Court is unlikely to fix its own error in this matter, so Congress can and should act. The civil rights attorney fee provision should operate pretty much like the one in Kirtsaeng. If there is any difference, it should be to make the reasonableness inquiry determinative.
* Yes, that Fogerty. ♫ Oh, Lord, stuck in a lawsuit again. ♫
Fraud. Universal Health Services, Inc. v. United States ex rel Escobar, No. 15-7, is a civil suit under the False Claims Act, but it deals with the meaning of "fraud," which is also a crime. Specifically, it deals with misrepresentation by omission and the importance of materiality.
Mootness. Kingdomware Technologies, Inc. v. United States, No. 14-916, deals with the question of mootness and the "capable of repetition, yet evading review" concept. These issues sometimes come up in suits to enjoin law enforcement practices. See, e.g., City of Los Angeles v. Lyons (1983).
On the other hand, the Court says that reasonableness of the nonprevailing party's position is not necessarily determinative, and a party with a reasonable position might be ordered to pay fees for other reasons such as litigation misconduct. The Court remands to ensure that other factors have been properly considered.
Now here is the relevance to the topic of this blog. How are civil rights suits under 42 U.S.C. §1983 -- especially those against law enforcement officers and agencies -- any different? The fee-shifting statute, §1988, is completely symmetrical on its face, but it has been construed [misconstrued, IMHO] by the Supreme Court to make attorney's fee awards nearly automatic for prevailing plaintiffs and nearly impossible for prevailing defendants. Why? Once upon a time, there may arguably have been an asymmetrical need to encourage "pushing the envelope" lawsuits by plaintiffs, but even assuming that for the sake of argument, the time is long behind us. Today the envelopes have been pushed too damn far already, and there is no good reason to encourage further pushing. Well-funded organizations that bring such lawsuits against police and correctional authorities should have to pony up when their suits are baloney and should bear their own fees when the question is close.
The Supreme Court is unlikely to fix its own error in this matter, so Congress can and should act. The civil rights attorney fee provision should operate pretty much like the one in Kirtsaeng. If there is any difference, it should be to make the reasonableness inquiry determinative.
* Yes, that Fogerty. ♫ Oh, Lord, stuck in a lawsuit again. ♫
Fraud. Universal Health Services, Inc. v. United States ex rel Escobar, No. 15-7, is a civil suit under the False Claims Act, but it deals with the meaning of "fraud," which is also a crime. Specifically, it deals with misrepresentation by omission and the importance of materiality.
Mootness. Kingdomware Technologies, Inc. v. United States, No. 14-916, deals with the question of mootness and the "capable of repetition, yet evading review" concept. These issues sometimes come up in suits to enjoin law enforcement practices. See, e.g., City of Los Angeles v. Lyons (1983).
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