Academic journal article Vanderbilt Law Review

On What A "Private Attorney General" Is-And Why It Matters

Academic journal article Vanderbilt Law Review

On What A "Private Attorney General" Is-And Why It Matters

Article excerpt

Although the phrase "private attorney general" is commonly employed in American law, its meaning remains elusive. The concept generally serves as a placeholder for any person who mixes public and private features in the adjudicative arena. Yet there are so many players who mix public and private functions in so many different ways that the idea holds the place for a motley cast of disparate characters. My goal in this Article is to map these mixes-to distill from the singular private attorney general concept a range of distinct private attorneys general-and then to show why this new taxonomy is a helpful heuristic device. Specifically, I argue that the new taxonomy illuminates a weakness in the governing model of the class case. Scholars loosely associated with the law and economics movement have helpfully described class action lawsuits as presenting a classic agency problem: class action attorneys (agents) pursue the interests of their class member clients (principals) with little oversight or control. Consequently, class action scholarship has focused on identifying ways to better align the interests of the agents with those of their principals. This obsession with agent incentives assumed, without significant investigation, that there existed a stable group of principals with easily-identifiable interests. My typology demonstrates that different types of private attorneys general serve different types of principals, each of which combine public and private interests in different ways. If the goal of class action law is to align the attorneys' interests with those of their clients, it is necessary to identify clearly the precise nature of these underlying principals. That is the contribution of this piece.

I. INTRODUCTION

May 17, 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education.1 This precise day also marked the sixty-first anniversary of the Supreme Court's first use of the phrase "private attorney general."2 For about three decades after this initial 1943 appearance, the private attorney general concept surfaced only occasionally in the legal literature. Starting in the 1970s, however, its presence became quite regular, and that regularity has escalated steadily to the present: on average, during the past fifteen years, every single workday, somewhere in the United States, some judge has written a legal opinion or some scholar has penned an article invoking the private attorney general concept.3

That the phrase is employed so frequently suggests its utility as a concept. What is odd, though, is that when probed, the concept proves surprisingly mercurial.4 The phrase is sometimes used to refer to plaintiffs,5 occasionally used to refer to defendants,6 and typically used to refer to lawyers.7 (What other concept is so malleable that it can be deployed to signify either a plaintiff or a defendant, a lawyer or a client?) Legislatures create private attorneys general by statute, but before they did and when they have not, courts have created them by judicial decision, and executive agencies by fiat.8 Congress creates private attorneys general, but so do state legislatures, state courts, and state administrative agencies.9 The phrase is an integral part of the doctrine of standing10 and of the rules concerning attorneys' fees.11 In its single most important decision about private attorneys general, the United States Supreme Court ruled that the Constitution necessarily restrains the concept, while simultaneously implying that courts of equity nonetheless retain inherent powers to propagate it.12

If there is any fixed star in this constellation, it is that the private attorney general is a placeholder for any person who mixes private and public features in the adjudicative arena. Yet even that compass point proves elusive, as there are so many players who mix public and private functions in so many different ways that the concept holds the place for a motley cast of disparate characters. …

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