Academic

Jackson on Fee Shifting after Seminole Tribe

By Lawrence Solum

T. Haller Jackson IV (Law Clerk, United States Court of Appeals for the Fifth Circuit) has posted Fee Shifting and Sovereign Immunity after Seminole Tribe (Nebraska Law Review, Vol. 88, No. 1, 2009) on SSRN.  Here is the abstract:

Something of a crisis for fee-shifting regimes is lurking in the Supreme Court's sovereign immunity jurisprudence. Cases like Seminole Tribe and Edelman v. Jordan call into question the permissibility of assessing fees against a state under Section 1988, among other fee-shifting provisions, in cases that do not involve a post-Eleventh Amendment cause of action. This Essay examines the conceptual and practical problems presented by a federal court's entry of a fee award against a state, along with the problems that would be caused by barring such awards as a constitutional matter. It analyzes the conceptual question through several lenses and ultimately concludes that fee awards may not be barred after all, but the answer is far from clear.

Full post as published by Legal Theory Blog on December 05, 2008 (boomark / email).