From: thf2@ellis.uchicago.edu (Ted Frank)
Newsgroups: talk.politics.theory,misc.legal
Subject: Re: "Full Employment Act" for lawyers?
Date: 28 Aug 92 16:04:42 GMT
Article-I.D.: midway.1992Aug28.160442.25332
Reply-To: thf2@midway.uchicago.edu
Organization: University of Chicago Computing Organizations

In article <1992Aug28.150036.16538@nsisrv.gsfc.nasa.gov> dsc@gemini.tmc.edu (Dou
g S. Caprette Bldg. 28 W191 x3892) writes:
>In article <1992Aug25.135539.7497@midway.uchicago.edu> thf2@midway.uchicago.edu
 writes: (in response to another posting deleted for brevity)
>>The American system fines those who bring frivolous suits.
>
>As a practical matter, how does this work?  How 'frivolous' does a suit need
>to be?  

The standard under Rule 11 is "well grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification, or
reversal of existing law, and that it is not interposed for any improper
purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation."

This includes motions within suits, and can include parts of pleadings.

>Does the person originally sued receive compensation, or can a wealthy
>litigant simply regard the subsequent fine as anothe legal cost incurred in
>the process of causing financial harm to a less wealthy adversary?

"[T]he court, upon motion, or its own initiative *shall* impose upon the
person who signed [the motion], a represented party, or both, an
appropriate sanction, which may include an order to pay to the other party
or parties the amount of the reasonable expenses incurred because of the
filing..., including a reasonable attorney's fee."  (Also from Rule 11.
Emphasis added.)

>>...                Under The Equal Access to Justice Act, 28 USC $ 2412, an   
>>individual with a net worth less than $2 million or a corporation with a net
>>worth less than $7 million or a 501(c)(3) non-profit group can recover
>>attorney's fees if they prevail against the government in a suit.
>
>Under what circumstances can these fees be recovered?  What limitations are
>there on the amounts that can be recovered?

Any suit brought by or against the government (unless expressly prohibited
by statute.)  Statutorily, a limit of $75/hour for attorney's fees is
suggested, but courts often allow this figure to be revised upwards.
The government's position in the litigation must not have been "substantially
justified."

>>42 USC $ 1988 allows the court discretion to award attorney's fees to the
>>prevailing party in a civil rights suit.
>
>What are the guidelines for determining if such an award is warranted?  

It's a recent statute, so there's still some controversy over this (as
there is with the preceding rules and statutes mentioned.)  The statute
doesn't say much more than I already have.  Recent decisions on $1988
include Hensley v Eckerhart, 461 US 424 (1983); Hewitt v Helms, 482 US
755 (1987).

>Do you think the jury (if one was used) should make this decision?  

No.

>Why is this
>restricted to civil rights cases and not extended to all civil cases?  

The argument is that a plaintiff in a civil rights case is vindicating
the rights of more than just herself, and won't receive all of the benefits
from a successful victory.  

>Should it be?

There are arguments both ways.
-- 
             ......................................................
             ted frank | thf2@midway.uchicago.edu | std disclaimers
             the university of chicago law skool, chicago, illinois
             it's log!  log!  log!  it's big, it's heavy, it's wood
Newsgroups: talk.politics.theory