The American rule dictates that regardless of the outcome, parties pay for their own attorneys' fees unless Congress has specifically enacted a fee-shifting statute authorizing courts to award fees to prevailing parties. One of the most recognized fee-shifting statutes is 42 U.S.C. § 1988. Courts and scholars have extensively discussed whether a plaintiff is a prevailing party under § 1988. Yet both have largely ignored one scenario in which a plaintiff files a suit containing both constitutional claims for which fees are authorized under § 1988 (fee claims) and state law claims for which fees are not authorized (nonfee claims). Courts then, invoking the avoidance doctrine, simply rule on the state law claim and leave the constitutional claim unaddressed. In this scenario, is the plaintiff a prevailing party under § 1988? The few courts that have addressed this question have adopted a rule that unnecessarily favors plaintiffs at the expense of defendants by allowing courts to award fees without finding that the defendants violated the plaintiffs' constitutional rights. It also creates a system that is ripe for abuse-one in which plaintiffs can use pleading tricks to obtain fee awards with "mere incantations" of fee claims. This Note proposes revising this rule by requiring that the fee and nonfee claims be reasonably related, with a heavy emphasis on whether they are based on related legal theories. This new rule would still let courts invoke the avoidance doctrine but would better protect defendants without unnecessarily burdening plaintiffs.
Jessica L. Brumley,
Avoiding Mere Incantations: Evaluating Success on Nonfee Claims When Determining Prevailing-Party Status under 42 U.S.C. § 1988,
58 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol58/iss4/3