Bridging the Gap between Congress and the Supreme Court: Interest Groups and the Erosion of the American Rule Governing Awards of Attorneys' Fees

prevailing parties were not entitled to recover their costs or attorneys' fees when they successfully advanced their claims on the merits. In 1964 this situation changed dramatically; passage of Title II of the Civil Rights Act coupled with a subsequent expansive Supreme Court interpretation of that provision, quickly led to erosion of the rule. In this paper we attempt to examine the demise of this longstanding public policy and the consequences of this change. The importance of such an analysis lies in the fact that (1) it is an issue that never has been studied by political scientists, and (2) it is an issue of paramount interest to all of the parties involved in this controversy: interest groups, Congress, and the courts. Interest groups litigating in the public interest depend on attorneys' fees awards for a substantial proportion of their operating expenses. Congress was especially concerned with implementation of civil rights laws and with appeasing affected "friendly" groups, and the Supreme Court, which was innundated with public interest lawsuits, quickly came to view attorneys' fees provisions as impediments to the orderly administration of justice. To facilitate an examination of this issue our paper is divided into two sections. In the first, we trace the evolution of the American rule. In the second, we demonstrate how the issue of attorneys' fees supports elements contained in various theories of pressure group politics. Seen in this light, fee shifting provides one issue by which to bridge several accepted notions of interest group activity. THE EVOLUTION OF THE AMERICAN RULE