Section 1988 Attorney Fee Awards in the Fifth Circuit
Cochran, George Colvin
The seminal case, Johnson v. Georgia Highway Express, Inc., set out the twelve factor test in awarding attorney fees. Since then, the Fifth Circuit has taken a confusing approach to its interpretation of Johnson. The author states that the court should take into account two built-in tensions when working to solve the Johnson dilemma. First, a legitimate institutional concern for demanding an empirically justifiable format for awards involving significant sums of money; and second, regardless of a district court's faithfulness to the Johnson factors, the circuit's desire to reserve for itself the right to employ its supervisory powers to correct awards which, on their face, are inequitable. The author believes that reconciling existing precedent is at best difficult and proposes possible solutions.