Sturm College of Law
Attorney's fees, Fee-shifting, Constitutional Law, Prevailing party, Texas Heartbeat Law, Private enforcement mechanism
If you want to win battles in the culture war, you enact legislation that regulates firearms, prohibits abortions, restricts discussion of critical race theory, or advances whatever other substantive policy preferences represent a victory for your side. But to win the war decisively with an incapacitating strike, you make it as difficult as possible for your adversaries to challenge those laws in court. Clever deployment of justiciability doctrines will help to insulate constitutionally questionable laws from judicial review, but some of the challenges you have sought to evade will manage to squeak through.
To fully disarm your opponents in an age of cultural and constitutional warfare, you must cut off their access to counsel. Here is how to do it in three easy steps: (1) delineate an entire area of law, such as abortion, in which proponents of the state-favored view may obtain attorney’s fees upon prevailing in litigation while proponents of the opposing view may not; (2) impose joint and several liability on the attorneys for the disfavored side, so that attorneys cannot bring challenges to state law without being personally responsible for what could amount to millions of dollars in the opposing party’s legal fees; and (3) define “prevailing party” so broadly that this shared liability is triggered by the dismissal of even a single claim.
This is what the Texas legislature did in S.B. 8, the Texas Heartbeat Law, pioneering a model that several other states have now followed. The extraordinary nature of this scheme has been overshadowed by both the private enforcement mechanism at the core of S.B. 8, intentionally designed to evade judicial review, and by the Supreme Court’s decision to overrule Roe v. Wade, ending constitutional protection for the right to terminate a pregnancy. As this Article shows, it would be a grave mistake to think that S.B. 8’s weaponization of attorney’s fees has lost its relevance. The end of Roe ushered in a new era of legal challenges to abortion regulation, for which Texas and its imitators have already stacked the deck. But perhaps even more significantly, there is little reason to think that the weaponization of attorney’s fees is limited to the abortion context or to conservative causes more broadly. California has already repurposed Texas’s strategy in an effort to deter Second Amendment challenges to its new firearm law, implementing an identical attorney’s fee regime for different ideological purposes. And why should the embrace of this strategy stop there? Can all state legislatures insulate their most troubling laws from judicial scrutiny by making it prohibitively risky for attorneys to challenge them?
This Article reveals that the attorney’s fee scheme woven into S.B. 8 is unprecedented and deeply threatening to our legal culture’s ideals of fair play, access to courts, and legitimate contestation of bitterly disputed issues. Accepting its proliferation will result in a profound aggrandizement of state power that is inconsistent with federalism and separation-of-powers principles, as well as due process, equal protection, and First Amendment rights.
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This work is derived from an Article originally published in The Yale Law Journal. See Rebecca Aviel & Wiley Kersh, The Weaponization of Attorney's Fees in an Age of Constitutional Warfare, 132 Yale L.J. 2048 (2023).
Rebecca Aviel & Wiley Kersh, The Weaponization of Attorney's Fees in an Age of Constitutional Warfare, 132 Yale L.J. 2048 (2023).