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Fees, Incentives, and Deterrence

Professor Linda Simard Sandstrom responds to both Professor Fitzpatrick and Professor Marcus on the topic of class action attorneys' fees. Professor Fitzpatrick provocatively argued that attorneys cannot bring many class actions that would deter harm to the public because they are not financially viable. To solve this problem, Fitzpatrick suggested that class action attorneys should be given significantly higher fees. Professor Marcus argued in response that the proposition faces doctrinal challenges and may not truly lead to greater deterrence. Professor Simard adds two additional challenges to Professor Fitzpatrick, arguing that increasing attorneys' fees could lead to more attorneys pursuing less meritorious cases. Simard argues that these cases are ultimately less likely to be successful and thus will not add to any deterrent effect. Moreover, she concludes, what small increase in deterrence may result is unlikely to outweigh the increased burden to the system which could prevent stronger cases from efficient access to relief.