Document Type


Publication Date



This article will first analyze different approaches to compensation rates in light of various theories of attorney fees. Second, it will review the case law developing the compensation formulas for court awarded fees and will consider the legislative history of statutory fee shifting. Finally, it will explore the meaning of the prevailing market rate formula and will show that courts using such a formula commonly misapply market rate analysis and fail to appreciate the need for a determination of reasonableness. While encouragement of litigation through fee shifting is a policy articulated in present statutes, awards based on the conventional (yet, in the view of this author, erroneous) theory of "prevailing" market rates may well lead to excessive fees, thus creating incentives for excessive litigation.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.