Title 42 U.S.C. Section 1988 – Interpretation

Title 42 U.S.C. Section 1988 - Interpretation

Title 42 U.S. C. § 1988 provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

In Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 269 (1975), the Supreme Court held that it was beyond the competence of judges to "pick and choose among plaintiffs and the statutes under which they sue and to award fees in some cases but not in others."

Congress, however, has full authority to make such decisions, and it responded to the challenge of Alyeska by doing the "picking and choosing" itself. Its legislative solution legitimates the federal common law of attorney's fees that had developed in the years before Alyeska by specifying when and to whom fees are to be available.

Section 1988 manifests a finely balanced congressional purpose to provide plaintiffs asserting asserting specified federal rights with "fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys." S. Rep. No. 94-1011, p. 6 (1976); cf. H. R. Rep. No. 94-1558, p. 9 (1976)