Vol. 37, No. 4, Fall 2005

Vol. 37, No.4, Fall 2005

Publication Date : January 20, 2006

 

AALS ATTORNEY’S FEES SYMPOSIUM

M . David Gelfand: A Tribute, 37 Urb. Law. 641 (Fall 2005).

M. David Gelfand, Guest Editor’s Introduction: Court-awarded Attorney’s Fees as a Crucial Mechanism for the Enforcement of Civil Rights , 37 Urb. Law. 647 (Fall 2005). The three articles in this symposium were developed from presentations and the subsequent panel discussion regarding “Reasonable Attorney’s Fees: A Crucial Mechanism for the Enforcement of Civil Rights,” which were held in San Francisco, California, on January 8, 2005. The panelists were: the Honorable Vaughn R. Walker, chief judge, U.S. District Court for the Northern District of California, San Francisco, California; Professor Mark R. Brown, Baker/Hostetler Chair, Capital University Law School, Columbus, Ohio; Armand Derfner, Derfner, Altman & Wilborn, L.L.C.; and James K. Green, James K. Green, P.A., West Palm Beach, Florida. Their outstanding presentations and panel discussion constituted the Civil Rights Section’s program at the 2005 Annual Meeting of the Association of American Law Schools (AALS). Together, the articles in this Symposium demonstrate the importance of court-awarded attorney’s fees for civil rights enforcement. The articles also explain the current judicial standards for obtaining a civil rights attorney’s fee award, trace the development of those standards, and pragmatically describe the process for litigating attorney’s fee claims.

Armand Derfner, Background and Origin of the Civil Rights Attorney’s Fee Awards Act of 1976 , 37 Urb. Law. 653 (Fall 2005). Two fateful meetings took place in the winter of 1975–76 that set the stage for the Civil Rights Attorney’s Fee Awards Act of 1976. The first was a meeting of civil rights lawyers and activists with Clarence Mitchell, the legendary lobbyist of the NAACP. The subject was the legislative agenda for 1976, and the consensus was that what we needed was an attorney’s fee law to help enforce the substantive civil rights provisions that were already on the books. The second meeting took place, not long after that, between Mitchell and Senator Robert Byrd of West Virginia, the then-Senate Majority Whip. Senate Majority Leader Mike Mansfield of Montana was about to retire, and Byrd wanted to move up. He wanted Mitchell’s support, and Mitchell, in turn, said the civil rights community wanted an attorney’s fee bill. Byrd committed to trying. The stage was set.

Mark R. Brown, A Primer on the Law of Attorney’s Fees Under § 1988 , 37 Urb. Law. 663 (Fall 2005). This article is intended as an attorney’s fees primer of sorts for lawyers engaged in civil rights litigation under 42 U.S.C. § 1983. It is by no means exhaustive; it addresses only some of the more common issues that arise under the Civil Rights Attorney’s Fees Act of 1976.

James K. Green & Barbara Kritchevsky, Litigating Attorney’s Fees: Running the Gauntlet , 37 Urb. Law. 691 (Fall 2005). Section 1988 aims to ensure that plaintiffs with civil rights grievances have “effective access to the judicial process.” Unfortunately, recovering attorney’s fees can be as difficult as prevailing in the case itself. Prevailing in fee litigation requires the plaintiff’s attorney to plan for fee recovery from the very beginning of trial and to conduct the trial with an eye towards eventual fee recovery. Private attorneys certainly have every motivation to maximize their fee recovery. Attorneys working for public interest organizations also should seek to maximize fee recovery for the sake of their organization and its future clients. Fee awards can prevent public interest organizations from having to lay off attorneys and paralegals, enabling the organizations to serve more future clients. This article aims to guide plaintiffs’ attorneys in planning for fee litigation and in maximizing recovery.

ARTICLES

Julie M. Cheslik, Lindsay Todd & Erin Brower, Supreme Court Report 2004–05: The End of the Rehnquist Era, 37 Urb. Law. 000 (Fall 2005). The 2004–05 Supreme Court Term has been called a “tame term,” in which the decisions of the Court exhibited the continuing power struggle between moderates and conservatives and, although the Court may not have embraced an appreciable shift to the left, the Court did evince a refusal to go right. Led by Justice John Paul Stevens, the Court retreated from or refused to extend some of the more conservative rulings of the “Rehnquist Revolution.” Instead, in many of the term’s most controversial and eagerly awaited decisions, it was Justice Stevens who authored the majority opinion, rather than the Chief Justice, who often found himself in the dissent. The shift has been explained by a “mellow[ing]” of the Justices as they age, “just like an old married couple that completes each other’s sentences.”

John R. Nolon, Comparative Land Use Law: Patterns of Sustainability, 37 Urb. Law. 807 (Fall 2005). This article is based on a review and comparison of nearly 100 laws, including at least several from each of the continents – a small sampling of the full complement of laws of the world’s nearly 200 nations that bear on land use and sustainable development. It begins with a short narrative touching on historical examples of governmental control of land development and then turns to an exploration of the Rio Declaration of 1992, whose principles are reflected in so many of the laws that are discussed in the subsequent Parts of this article. Those Parts explore laws that promote urban planning, decent housing, slum eradication, restructuring of government, and property rights.

Minor Myers III, Obstacles to Bargaining Between Local Governments: The Case of West Haven and Orange, Connecticut, 37 Urb. Law. 853 (Fall 2005). Scholarship on the organization of local government in U.S. metropolitan areas divides, roughly, into two groups. On one side is work that identifies something deeply wrong with the current structure of local government: hopeless fragmentation that cries out for consolidation or some other alteration to similar effect. On the other side is a theory that relies on a more market-based theory of local governments and believes that multiple, vertically and horizontally fragmented local governments can be an efficient mechanism for providing local public goods. A lynchpin of the market-based argument is that local governments will bargain with one another (and with private entities) to achieve economies of scale in the production of local public goods and to account for cost and benefit spillovers between local jurisdictions. To some extent, the optimal structure of local government turns on the outcome of the debate. Limited empirical work on interlocal bargaining has uncovered relatively efficient bargaining between local governments for services like police, fire, street maintenance, and education. This article explores the relationship between two Connecticut towns— Orange and West Haven—in the metropolitan New Haven area and suggests that bargaining between local governments can be more difficult and complicated than heretofore recognized.

James A. Kushner, City Life in the Age of High Technology, 37 Urb. Law. 893 (Fall 2005). The information highway of the twenty-first century presents a threat to urban life as it offers incentives towards deconcentration and urban sprawl. Telecommuting (rather than commuting to a central office), operating electronic businesses over the Internet, and electronic shopping encourage the satisfaction of market demand of the affluent to reside in the bucolic rural urban fringe and offer a powerful marketing tool for suburban development. Countervailing centripetal forces include the attraction of city life: cultural, recreational and social opportunities unavailable in the country, efficient and comfortable mass transit, urban revitalization and investment by the public sector in pedestrian-supporting infrastructure, brownfields redevelopment and the rising costs of maintaining a suburban home, and automobile dependency encourage centralization. The author argues that maintenance of the central city is the key to environmental sustainability and that land supply, even in nations with the most extensive land resources, as in North America, lack the land to accommodate the housing needs of projected population, anticipated economic development growth, and protection of the environment.

Brannon P. Denning & Rachel M. Lary, Retail Store Size-Capping Ordinances and the Dormant Commerce Clause Doctrine , 37 Urb. Law. 907 (Fall 2005). In an effort to control suburban “sprawl,” many local land use planners have targeted large, A big box @ retailers—Wal-Mart, for example—alleged to be catalysts for sprawl. A Size-capping @ ordinances limiting the amount of square feet that stores may occupy have become a popular alternative to complex, expensive smart-growth regimes. Unfortunately, many of these size-cap ordinances are vulnerable to dormant Commerce Clause doctrine (DCCD) challenges because, though facially-neutral, they are passed with either an avowed protectionist purpose (protecting local retailers from competition) or discriminate against out-of-state retailers in their effects. The following article furnishes evidence for this assertion, as well as provides tentative answers to two vexing doctrinal questions that the Supreme Court has never explicitly answered in its DCCD jurisprudence. First, how are courts to tease out a protectionist purpose? Second, which effects count as discriminatory under the DCCD?

James D. Jorgensen & Lelia B. Helms, R ecent Developments in Public Education Law: Postsecondary Education, 2004-05, 37 Urb. Law. 957 (Fall 2005). Noticeably absent from this year’s slate of postsecondary education cases is a decision from the U.S. Supreme Court. Nonetheless, lower courts remained busy with a wide variety of cases in this area of the law. Several appeals courts weighed in on First Amendment issues concerning both student and employee speech. A number of those cases centered on disputes over compliance with the federal Solomon Amendment requiring institutions to provide access to military recruiters. There were also many disputes over the circumstances in which the bankruptcy courts may discharge student loan debt, with over fifty reported cases. And as usual, a number of courts issued decisions on a variety of employment discrimination and harassment cases frequently involving claims of retaliation. This article reviews the most noteworthy decisions.

With Cases Notes on:

Bechen v. Moody County Bd. of Comm’rs

Mount Laurel Township v. Mipro Homes, L.L.C.

Hosty v. Carter

Herbert Odle v. Decatur County, Tennessee

Wentwood Woodside I, L.P. v. GMAC Commercial Mortgage Corp.

Golden v. Crawford

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