The Weaponization of Attorney's Fees in an Age of Constitutional Warfare.

• Author: Aviel, Rebecca

ARTICLE CONTENTS INTRODUCTION 2051 1. THE OTHER REVIEW-IMPAIRING PROVISIONS OF S.B. 8 2058 A. Understanding the Texas Three Step 2059 1. Viewpoint-Specific Fee-Shifting for All Abortion Litigation 2059 2. Joint and Several Liability for Attorneys of Reproductive-Rights Litigants 2065 3. Expansive Definition of "Prevailing Party" 2069 B. Implications for Access to Counsel 2072 C. Mapping Out the Range of Applications 2075 II. ONE-SIDED FEE-SHIFTING IN CONTEXT 2080 A. Understanding the Singular Nature of the S.B. 8 Fee-Shifting Regime 2080 B. Preemption Concerns 2092 C. An Exclusionary Regime with Constitutional Implications 2096 III. CONSTITUTIONAL DEFECTS IN THE TEXAS THREE STEP 2097 A. Scenario One: No State Laws of Any Sort May Be Challenged in Court 2104 B. Scenario Two: No Abortion Laws May Be Challenged in Court 2110 C. Scenario Three: Abortion-Law Challengers May Not Be Represented by Attorneys 2124 D. Scenario Four: Abortion-Law Challengers Must Find Attorneys Willing to Share Fee Liability 2129 CONCLUSION 2137 INTRODUCTION

Novel experiments are underway in the oft-vaunted laboratories of democracy, but the work seems motivated by something other than the spirit of scientific inquiry applied to self-governance. (1) Emboldened by--or perhaps reacting against--swift changes in the composition of the Supreme Court and working in an era of extraordinary polarization, state legislatures are churning out laws that flout constitutional boundaries and expand the acceptable targets and instruments of regulation. (2) Aware that this kind of innovation makes the laws susceptible to challenge, legislatures are seeking to insulate their work product from judicial review with a range of mechanisms that warrant our close attention. As this Article demonstrates, access to courts is quickly becoming a casualty of the escalating culture wars.

A pivotal moment in the story was the enactment of the Texas Heartbeat Law--commonly known as S.B. 8--in August 2021, which prohibits abortions after a detectable heartbeat. (3) S.B. 8 clearly violated the constitutional principles governing abortion law at the time, but it was deliberately engineered to avoid intervention from state or federal courts that might rectify the error. Because the ban is enforceable only by private parties, not by the state, it has been extremely difficult to challenge. (4) In the absence of a suitable defendant, reproductive-rights advocates struggled to meet the justiciability requirements that would allow them to proceed to a decision on the merits regarding the law's constitutionality. (5) After the Supreme Court declined to repudiate the maneuver, (6) Oklahoma enacted a fetal-heartbeat law modeled upon S.B. 8 with identical language in key provisions. (7)

California has repurposed for gun control what Texas pioneered for abortion control. (8) In July 2022, the state enacted S.B. 1327, a law prohibiting the manufacture and distribution of a wide variety of assault rifles, unserialized firearms, and other weapons. (9) The ban is enforceable only by private parties, who are entitled to statutory damages of $10,000 per firearm, injunctive relief, and the recovery of attorney's fees. (10) Although it is unclear whether the law complies with the Second Amendment, (11) its challengers face the same barriers to judicial review that abortion-rights advocates have faced in Texas. (12) Other states are poised to repeat this approach, recognizing that reliance on an exclusively private enforcement mechanism is a highly effective way to keep their ideological adversaries out of court. (13)

While the implications of exclusive private enforcement have been mined by other scholars, (14) virtually no attention has been paid to an even more troubling set of review-impairing innovations woven into the Texas Heartbeat Law and spreading quickly to other states, including California. (15) In S.B. 8, Texas implemented an unprecedented attorney's fee regime--what we call the "Texas Three Step." It has three distinct features that work together to target a category of disfavored litigants with special obstacles on their way to the courthouse door. (16) S.B. 8 requires that challengers, but not defenders, of anti-abortion laws pay the costs and attorney's fees of the prevailing party. (17) These provisions reach far beyond the particular type of private lawsuit authorized by S.B. 8--indeed, they apply to anyone seeking declaratory or injunctive relief against any Texas abortion law, making it a comprehensive scheme that insulates state law from judicial review by discouraging challengers with the threat of catastrophic fee awards. (18) Most consequentially, the law makes attorneys and law firms jointly and severally liable for those awards, a provision clearly intended to deter attorneys from taking affected cases. (19) And because the law includes an incredibly broad definition of "prevailing party," this shared fee liability is triggered if an abortion-law challenger has even a single claim dismissed for any reason. (20)

The combined effect of these provisions is to impose prohibitively risky fee liability upon attorneys who represent a certain kind of litigant raising a certain kind of claim. As we explain, the burdens on access to counsel imposed by the Texas Three Step are so severe that they impair access to courts for the targeted litigants. (21) California recreates each of these weaponized attorney's fee provisions in its new assault-weapons law, illustrating the ease with which they can be deployed against rights with a different political valence.

We must understand these previously overlooked elements of S.B. 8 and appreciate the full range of implications both within the abortion context and beyond. (22) Although the Supreme Court has now overruled Roe v. Wade (23) and Planned Parenthood of Southeastern Pennsylvania v. Casey, (24) these review-impairing innovations are hardly mooted by the end of the constitutional right to terminate a pregnancy. (25) First, the idea that abortion litigation has ended is false: the trigger laws enacted in anticipation of Roe's demise, the new crop of evermore punitive laws emerging in state legislatures that burden the right to travel or receive information about abortion, (26) the interjurisdictional conflicts between states that protect abortion rights and states that do not, and the potential for intervention by the federal government all promise a virtually endless churn of cases, many of which are already underway. (27) Texas has endeavored to stack the deck for all of these cases so that anyone seeking declaratory or injunctive relief against any Texas abortion law not only faces the threat of paying their opponent's legal fees but must also convince their lawyer to share this risk with them. Even if this regime operated only in the context of abortion, we would want to fully understand its implications as we begin a new era of reproductive-rights litigation.

But as California has demonstrated, the Texas Three Step is enormously attractive and versatile. If Texas and California can proceed in this vein, then why cannot all state legislatures insulate their most constitutionally questionable laws from judicial scrutiny simply by making it prohibitively risky for attorneys to challenge them? As this Article demonstrates, attorney's fee provisions intentionally designed to keep a state's ideological adversaries out of court not only threaten individual liberties but also undermine the very structure of our constitutional democracy.

The Article begins with a close examination of the review-impairing mechanisms in S.B. 8 that implicate the right to civil counsel, demonstrating the combined force of each element in the Texas Three Step. Part II contextualizes this unprecedented scheme with a summary of the American approach to attorney's fees. It explains the default common-law approach and surveys state and federal statutes that have departed from the "American rule," which requires that each side pay their own costs and fees. This Part shows that the Texas Three Step is categorically unlike previous statutory fee-shifting provisions--provisions carefully crafted to enhance, not impair, access to courts. (28) The clear conflict with federal law is sufficiently pronounced to trigger the application of preemption principles. In Part III, we directly confront the constitutional significance of a state's attempt to insulate its own law from legal challenge, exploring the extent to which such a gambit is prohibited by federalism and separation-of-powers principles, First Amendment and Equal Protection rights, and due process protections for access to civil counsel.

We conclude the Article by emphasizing the destructive potential reach of the Texas Three Step for our entire democratic system. The power to prevent one's political adversaries from obtaining counsel is potent and attractive, and it can cross many fields of cultural battle--nothing limits it to the abortion or firearm contexts where it has so far appeared. If any universal norms remain in our hyperpolarized political environment, this ought to be one: certain kinds of litigants should not be targeted for special obstacles on their way to the courthouse simply because the position they seek to vindicate is politically unpopular.

Twenty years ago, David Luban wrote that "talcing out your adversary's lawyers is dirty law." (29) In the contemporary version on display in S.B. 8 and its imitators, the attempt to take out the adversary's lawyers also reveals a profoundly troubling view of consolidated government power--one in which those at odds with state lawmakers lose access to both state and federal courts. Notwithstanding their many shortcomings and imperfections, (30) courts remain important channels for dissent, contestation, and public resolution of demands for accountability and redress. As Judith Resnik has observed, we should understand courts "as a...