Fee Shifting and the Implementation of Public Policy

Frances Kahn Zemans
1984 Law & Contemporary Problems  
INTRODUCTION The American legal system is structured so that private citizens by invoking the law play a critical role in its enforcement. Any new authoritative rule, whether statutory, judicial, or administrative, merely provides potential opportunities. In practice, conferred rights are contingent upon the factors that promote or inhibit mobilization of the law.' With enforcement highly dependent upon initiation of the legal process by citizens, the factors that influence their decisions to
more » ... voke the law are centrally important to the implementation of public policy. The American rule on attorney fee allocation is one such factor, for it determines the direct financial burdens of legal representation. The distribution of legality occurs largely outside public forums and without the intervention of professional counsel. It proceeds by way of voluntary compliance and through the assertion of legal rights by potential beneficiaries of the law. In most cases the matter continues no further, because of satisfaction of the demand or a decision that further pursuit of the issue is not worth the trouble. 2 To say, however, that neither courts nor lawyers are directly involved in most mobilization of the law is not to say that the nature of courts and the structure of the legal profession play no role. For once the legal potential of an issue is recognized and asserted, the threat of more formal legal action and the attendant power of the state are incorporated into any continuing discussion. Therefore, substantive laws and procedural rules do count-and they count well beyond the courtroom and even the law office. This perspective is compatible with Mnookin and Kornhauser's view that private ordering-the bargaining process-is affected by legal rules and procedures, that is to say, what would happen in court if a case were to be filed and to proceed to disposition. 3 Thus, for example, the threat of formal legal
doi:10.2307/1191440 fatcat:b6n6wwh4yvgyhgqu3ynk6h5wli