The Legal Theory of Attorney Fee Shifting: A Critical Overview

Abstract

With its general rule that each side in civil litigation has ultimate responsibility for its own lawyer's fees and that the system will not require the loser to pay anything toward the winner's representation, this country stands in a small minority among the industrialized democracies.1 The English routinely include an assessment for a reasonable attorney's fee in the costs to be borne by a losing party;2 the usual rule on the Continent is similarly to assess the loser for at least part of the winner's attorney fees.3 In recent decades, the American rule of no attorney fee shifting has come under increasing questioning and criticism.4 At the same time, the rule has been riddled with ever more numerous exceptions at both state and federal levels.5 Discussion of fee shifting rules in cases, legislative histories, and commentary has tended to remain ad hoc, understandably focusing on interests and concerns surrounding a particular possible or existing exception to the American rule. There exist, indeed, several different sorts of reasons why a legal system might choose a policy of requiring losing litigants to pay winners' legal fees in some or all cases. This