Private attorney general
A private attorney general or public interest lawyer is an informal term originating in common law jurisdictions for a private attorney who brings a lawsuit claiming it to be in the public interest, i.e., benefiting the general public and not just the plaintiff, on behalf of a citizen or group of citizens.[1][2] The attorney may, at the equitable discretion of the court, be entitled to recover attorney's fees if they prevail. The rationale behind this principle is to provide extra incentive to private attorneys to pursue suits that may be of benefit to society at large. Private attorney general suits are commonly, though not always, brought as class actions in jurisdictions that permit the certification of class action lawsuits.
Origin
Historically in English
India
Historical cases
One of the earliest public interest litigation was filed by
In December 1979, Kapila Hingorani filed a petition in regards to the condition of the prisoners detained in the Bihar jail, whose suits were pending in court. The petition was signed by prisoners of the Bihar jail and the case was filed in the Supreme Court of India before the bench headed by Justice P. N. Bhagwati. The petition was filed under the name of a prisoner, Hussainara Khatoon, and the case was therefore named Hussainara Khatoon Vs State of Bihar. The Supreme Court decided that prisoners should receive free legal aid and fast hearings. As a result, 40,000 prisoners were released from jail. Thereafter many similar cases have been registered in the Supreme Court. It was in the case of SP Gupta vs Union of India that the Supreme Court of India defined the term "public interest litigation" in the Indian context.
In Vishaka v State of Rajasthan, the plaintiff fought against sexual harassment in the workplace and was filed by Bhanwari Devi, who, after trying to stop the marriage of a one year old girl in rural Rajasthan, was raped by five men. She faced numerous problems when she (Devi) attempted to seek justice. Naina Kapoor decided to initiate a PIL to challenge sexual harassment at workplace in the Supreme Courts. The judgement of the case recognised sexual harassment as a violation of the fundamental constitutional rights of Articles 14, 15, and 21. The guidelines also directed for sexual harassment prevention.[6]
United States
In the United States, many
Another example of the "private attorney general" provisions is the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO allows average citizens (private attorneys general) to sue organisations that commit mail and wire fraud as part of their criminal enterprise.[citation needed] To date, there are over 60 federal statutes[citation needed] that encourage private enforcement by allowing prevailing plaintiffs to collect attorney's fees.
Attorneys who function as a private attorney general do so without compensation. The statutes permitting a plaintiff to recover attorneys' fees have been held not to apply when the plaintiff is an attorney.
President Clinton sought to find common ground between liberals who support stronger enforcement of civil rights and
The U.S. Congress codified the private attorney general principle into law with the enactment of
While there is such a thing as a private attorney general act in the United States, it should be stated that there is no such thing as a private non-attorney citizen being a "private attorney general" for all purposes. The term applies only to the exercise of one's ability to pursue certain specific kinds of legal actions which are statutorily authorized. It does not create the ability to call one's self a "private attorney general".
Criticism
In the area of product liability and consumer protection law, advocates of tort reform criticise private attorney general suits as attempts at regulation through litigation, the idea that litigation is being used to achieve regulatory ends that advocates would not be able to achieve through the democratic process. Private attorney general suits in America are frequently criticised as examples of regulation through litigation.
Another criticism of private attorney general suits in common law jurisdictions is that the availability of discovery enables private attorneys general to impose costs on defendants in order to force settlements in unmeritorious cases to avoid the cost of discovery.[23] Similarly, legal commentators in civil law jurisdictions argue that broad discovery in the hands of private parties is destructive of the rule of law and amounts to "a private inquisition."[24] Civil law countries see the underlying objectives of discovery as properly monopolised by the state in order to maintain the rule of law: the investigative objective of discovery is the prerogative of the executive branch, and insofar as discovery may be able to facilitate the creation of new rights, that is the prerogative of the legislative branch.[24]
The principle underlying private attorney general lawsuits and the traditional writ of qui tam stands in contrast to the doctrine of parens patriae, under which the government is best placed to protect citizens from harmful conduct in its capacity as the "parent of the nation".
See also
Notes
- ^ For example, Rep. Rick Boucher (D-VA) argued in support of a 2005 federal tort reform that gave immunity to gun manufacturers in certain lawsuits because such lawsuits were "nothing more than thinly veiled attempts to circumvent the legislative process and achieve gun control through litigation"; reform supporters complained that (and the Pentagon supported the bill on the grounds that) the plaintiffs were trying to "sue [gun manufacturers] out of existence" by forcing them to incur $250 million in legal defence expenses, while gun control supporters argued that the legislation took "away the right of victims to be able to have their day in court," that the bill gave unprecedented immunity to a single industry, and claimed that the law was unconstitutional.[15]
References
- ^ a b Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402
- ^ The earliest known use by a court in the United States is by Judge Frank in Associated Industries of New York State, Inc. v. Ickes, 134 F.2d 694 (2d Cir. 1943).
- ^ Newman, Nathan (10 February 2022). "Decrying "Bounties" in Texas' S.B. 8 Is a Political Trap". Slate. Archived from the original on 12 February 2022. Retrieved 7 August 2022.
- ^ Unique Product Solutions v. Hy-Grade Valve, Inc., 765 F. Supp. 2d 997 (N.D. Ohio 2011).
- ^ Quinn, Gene (September 26, 2011). "America Invents: A Simple Guide to Patent Reform, Part 1". IPWatchdog.com. Archived from the original on 3 October 2011. Retrieved September 28, 2011.
- ^ a b Bharat, Amar (2017-10-24). "PIL AND DIFFERENCE BETWEEN "PUBLIC INTEREST LITIGATION" AND "PRIVATE INTEREST LITIGATION"". Into Legal World. Archived from the original on 2017-10-29. Retrieved 2017-12-07.
- ^ MC Mehta v Union of India AIR 1987 SC 1086 (Oleum Gas Leak Case) archived here
- ^ Raghavan, Vikram (16 February 2009). "Vasantha Pai, an advocate's advocate". The Hindu. Archived from the original on 25 April 2021. Retrieved 9 September 2021.
- ^ Belliappa, P. M. (29 January 2011). "The controversy over age... then and now". The Hindu. Archived from the original on 11 April 2021. Retrieved 9 September 2021.
- ^ "G. Vasantha Pai vs Sri S. Ramachandra Iyer". Indian Kanoon. Archived from the original on 25 December 2011. Retrieved 9 September 2021.
- ^ Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 88 S.Ct. 964, 19 L.Ed.2d 1263.
- Wall Street Journal.
- ^ Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925. vacated as moot 67 U.S.L.W. 3129 (U.S. Aug. 17, 1998) (No. 97-1620)
- ^ Cannon v. University of Chicago, 441 U.S. 677 (1968)
- ^ Simon, Richard (2005-10-21). "Bill to Shield Gun Makers Is Approved". Los Angeles Times. Archived from the original on 22 January 2009. Retrieved 2012-06-28.
- JSTOR 840090.
- ^ Noor Mahmmad Usmanbhai Mansuri v State of Gujarat (1997) 1 GujLH 49 at [57]
- ISSN 0305-0718.
- JSTOR 2006714.
- JSTOR 117018.
- JSTOR 2555680.
- ISSN 0144-8188.
- ISBN 978-0-226-28199-5.
Faced with grinding discovery demands that distract employees from operating the business, even blameless defendants settle.
- ^ ISBN 9781139504898. Retrieved 9 June 2020.