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Research on Theattorney’s Fee-Shifting Rules of U.S. Environment Citizen Suit

Author: WuHongJie
Tutor: WangZuo
School: Shanghai Jiaotong University
Course: Environment and Resources Protection Law
Keywords: citizen suit attorney’s fee-shifting rule incentive mechanic “appropriate”standard catalyst theory
CLC: DD915
Type: Master's thesis
Year: 2011
Downloads: 57
Quote: 2
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Abstract


“Attorney’s fee-shifting rules”is the significant“incentive mechanic”safeguarding the effective operation of citizen suit system, which makes American environmental laws implemented effectively. The rules encourage subjects like ordinary citizens, NGOs to bring citizen suits, fighting hard for environmental public interest.The core content of the“attorney’s fee-shifting rules”is the statutory“fee-shifting provision”, by which courts are authorized to award attorney’s fee to any party whenever courts determine such an award is“appropriate”. This provision exceeds the“American rule”- each party shall bear his own attorney’s fee.For the obscurity of this statutory rule, courts have to explore the“appropriate”standard through judicial practices. Until now, some general judicial rules have been formed concerning the basic conditions of parties’recovering their attorney’s fee. For a plaintiff, in order to recover his fee, he must acquire“some success on the merit”, and the suit should be in the public interest. However, it is more difficult for a defendant to recover his fee, and the“Christiansburg”standard shall be complied with. In addition, there are also some rules in development. For instance, whether a plaintiff with“financial motivation”can recover his fee and whether the“catalyst theory”is still valid are still not determined.In theory,“attorney’s fee-shifting rules”could also be used as“incentive mechanic”in Chinese environmental citizen suit system. But the“fee-shifting provision”should be reasonably stipulated. First, it should mainly serve the principal function of motivating general public and lawyers fighting for environmental public interest. Second, the special function of preventing frivolous suits should be reserved. Finally, the provision should be stipulated clearly enough in order to provide substantial guide for courts and parties.

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