The lodestar has been the dominant calculation method for fee-shifting awards for nearly 40 years. But the lodestar has numerous persistent issues: it leads to extra litigation and judicial effort, it results in highly variable fee awards, and it incentivizes plaintiffs’ attorneys to bill extravagantly and reject settlement. This Article argues that these issues with the lodestar, along with many others, result from a mismatch between the lodestar and the purpose of the underlying fee-shifting statutes, which is to encourage attorneys to bring suits that would not normally be economically viable. Encouraging attorneys to do so requires the fee awards to be predictable. This Article concludes that predictability is impossible within the lodestar, which allows an attorney to set the base calculation and asks a judge to use percentage cuts to arrive at a just result. This Article therefore proposes adopting a framework for fee awards that resembles the Federal Sentencing Guidelines, using an automatic calculation to set a fee range that the judge can work within or, in an unusual case, from which the judge can deviate upward or downward. This framework will address each of the lodestar’s persistent concerns and provide the predictability that will encourage the cases these fee-shifting statutes intend to encourage.
Navigating Beyond the Lodestar: Borrowing the Federal Sentencing Guidelines to Provide Fee-Shifting Predictability,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol127/iss1/4