Future Retirement Success
  • Politics
  • Business
  • Investing
  • Stocks
  • Politics
  • Business
  • Investing
  • Stocks

Future Retirement Success

Investing

Congress Should Restore the Proper Incentives for Public-Interest Litigation

by July 16, 2025
July 16, 2025
Congress Should Restore the Proper Incentives for Public-Interest Litigation

Thomas A. Berry

Suing the government is expensive work. That’s why federal law authorizes the “prevailing party” in a civil rights suit against the government to request attorneys’ fees. But what happens if a court temporarily blocks a law as likely unconstitutional, and the legislature then repeals that law? Do the law’s challengers qualify as “prevailing parties” because they got everything they wanted? Or must a court strike the final blow against a law for its challengers to qualify as “prevailing”? That is the question the Supreme Court answered in Lackey v. Stinnie. 

Unfortunately, the decision the Court reached is a setback for civil rights plaintiffs, who will now find it more difficult to muster the legal resources they need. But Congress can easily fix this problem and restore the pre-Lackey status quo.

Before Lackey, most appellate courts had held that a party who receives a preliminary injunction against a law is the “prevailing party” if the government then repeals the law and leaves nothing further for the court to do. That rule made sense because civil rights litigation is designed to impact the law. When people cause the law to change in their favor, they “prevail” in every sense of that concept. This principle could be easily enforced with a bright-line rule: A party that wins relief at a preliminary stage of litigation “prevails” if it then obtains a change in policy that materially alters the law in its favor.

Indeed, some of the most influential civil rights decisions in history never reached final judgment. Impact litigation is about setting precedents just as much as it is about winning a particular case. Many of the Supreme Court’s most important decisions were at the preliminary injunction stage, and it would be bizarre to say that the winning side in those cases did not qualify as the “prevailing party.”

But the Supreme Court in Lackey instead construed “prevailing party” narrowly, ruling that litigants are eligible for attorneys’ fees only when courts “conclusively resolve the rights of parties on the merits.” That excludes suits that are mooted after a preliminary injunction. As Justice Jackson noted in dissent, there is “every reason to believe that the net result of [this] decision will be less civil rights enforcement in the long run.” This decision will promote the “strategic mooting of cases by defendants” who see “the writing on the wall.”

But as Chief Justice Roberts noted in his majority opinion, Congress “may amend the statutory language” if it “determines that the rule we adopt … is unwise.” 

Congress should take up that offer and amend the law at issue so that “prevailing party” has the meaning it did in most jurisdictions before Lackey: a party that wins a preliminary injunction before a case becomes moot is a “prevailing party.” Making this simple fix would help ensure that civil rights attorneys have the resources they need to hold the government accountable. And that is of vital importance whether you happen to be a conservative, progressive, or libertarian. 

People of all political persuasions have had good reasons to support litigation against the government at one point or another. Fixing the problem caused by Lackey should be a cause that achieves bipartisan support.

0
FacebookTwitterGoogle +Pinterest
previous post
House Republicans float grilling Joe, Jill Biden as former aides stonewall cover-up probe
next post
Iran faces August deadline to accept comprehensive nuclear deal or face renewed UN sanctions

You may also like

China’s Heroic Unofficial Historians

October 6, 2023

Representative Mooney Calls Out Fed’s CBDC Pilots

May 26, 2023

Friday Feature: Awakening Spirit Homeschool Collaborative

January 26, 2024

NAEP Is Worth Exploring, But Educational Freedom Is...

January 29, 2025

The Free Speech Recession Deepens Across the Democratic...

January 8, 2024

Collateral Damage of IRS Audits

May 22, 2023

Inflation News Is Still Exaggerated by Dubious Shelter...

July 11, 2024

The Trump Administration’s Eggstremely Interesting Fix for High...

February 26, 2025

New Defending Globalization Content: A Case Against World...

July 9, 2024

Don’t Reward the Government for Hiding Constitutional Violations

March 21, 2024

    Get free access to all of the retirement secrets and income strategies from our experts! or Join The Exclusive Subscription Today And Get the Premium Articles Acess for Free

    By opting in you agree to receive emails from us and our affiliates. Your information is secure and your privacy is protected.

    Recent Posts

    • NDAs banning harassment and discrimination disclosures to be void under new UK workplace reforms

      August 7, 2025
    • Bank of England cuts interest rates to 4% in historic two-round vote amid economic slowdown

      August 7, 2025
    • Trump-Putin meeting agreed upon ‘in principle,’ Kremlin aide indicates

      August 7, 2025
    • Why Transparency and Trust Are Crucial for UK FX Brokers in 2025

      August 7, 2025
    • Smarter Condo Communities Start with Better Finances and Better Software

      August 7, 2025
    • 3 Smart Ways UK Entrepreneurs Can Diversify Their Income

      August 7, 2025

    Categories

    • Business (8,703)
    • Investing (2,179)
    • Politics (16,330)
    • Stocks (3,228)
    • About us
    • Privacy Policy
    • Terms & Conditions

    Disclaimer: futureretirementsuccess.com, its managers, its employees, and assigns (collectively “The Company”) do not make any guarantee or warranty about what is advertised above. Information provided by this website is for research purposes only and should not be considered as personalized financial advice. The Company is not affiliated with, nor does it receive compensation from, any specific security. The Company is not registered or licensed by any governing body in any jurisdiction to give investing advice or provide investment recommendation. Any investments recommended here should be taken into consideration only after consulting with your investment advisor and after reviewing the prospectus or financial statements of the company.

    Copyright © 2025 futureretirementsuccess.com | All Rights Reserved