483 U. S. 711
June 26, 1987
After several years of legal wrangling, a group of annoying environmentalist busybodies forced Pennsylvania to take some green measures. Lawyers for the Council had worked on a contingent basis, and after victory, the court granted the Council attorney fees. The court tried to adjust the amount of fees dramatically upward to reflect the risky and contingent nature of the litigation. Pennsylvania protested that this upward adjustment was not within the court’s discretion.
The Court unanimously vacated the lower court’s fee award, but broke into three blocs about what to do next. White, also writing for Rehnquist, Powell, and Scalia, said that no adjustments should be allowed. Computation of fees already took into account lengthiness and difficulty of the litigation. Furthermore, deciding what cases are “risky” is totally arbitrary. Finally, the adjustment system would unfairly punish parties who lost very legally strong cases. White concluded by questioning whether the lawsuit even involved as much risk as was claimed, and said that in any event the upward adjustments were far too high.
Blackmun, joined by Brennan, Marshall, and Stevens, said that court-awarded contingency fees needed to be at least roughly equal to fees in the overall legal marketplace; otherwise, many good cases will never attract counsel. Blackmun then tried to explain how upward adjustment could be done in a fair and arbitrary manner that avoided most of the plurality’s doubts and what-ifs. He felt courts could come up with appropriate multipliers. Nonetheless, he still felt the factual record was underdeveloped, and thought the lower court should start from scratch in determining the appropriate amount of fees.
O’Connor’s opinion is an infuriating attempt to split the baby. She agreed with Blackmun that upward adjustment was sometimes necessary, and that having the fees be competitive with the general marketplace was of great importance. She agreed with White that multipliers should not be used, that “risk” should not be considered, and that some concerns about arbitrariness were well founded.
This case was argued twice, and it still failed to receive a half-decent conclusion. O’Connor should have picked a side. Her hemming and hawing only makes for more judicial headaches. I pity the poor judge who had to deal with this case on remand. With regard to the merits, I can only say that I’m in favor of anything that cuts down on massive attorney fees.