Fee-Shifting Shortcuts

Federal fee-shifting statutes, which allow certain prevailing plaintiffs to recover a reasonable attorney’s fee from the defendant, are critically important to civil rights enforcement. When it comes to the interpretation of these statutes, however, a wide gap separates the doctrine articulated by the Supreme Court and the decisions issued by lower courts. According to the Supreme Court, the calculation of a feeshifting award requires a highly contextualized inquiry, specific to the plaintiff’s attorneys and claims; in the lower courts, by contrast, judges take a set of welltrodden shortcuts that flatten many of the differences the case law makes relevant. This Article identifies and analyzes this gap between the Supreme Court and the lower courts. It focuses on three particularly common shortcuts: lower courts’ use of standardized hourly rates, reliance on judicial expertise about legal markets, and duplication of previous fee awards. Each of these shortcuts can undervalue attorneys’ labor, making it harder for civil rights claimants to find qualified counsel. None is fully consistent with the highly contextualized inquiry that the Supreme Court requires. Meaningfully narrowing the gap between the Supreme Court and the lower courts would require as much attention to legal culture as to legal doctrine. For example, if a Justice does not appreciate the day-to-day work of the district courts, they will be unlikely to recognize the judicial burdens their fee-shifting decisions have created; and if a judge does not appreciate the logistics and value of plaintiff-side civil rights litigation, they will be unlikely to treat the resolution of fee disputes as a task worthy of their time.