Burlington v. Dague, 505 U.S. 557, 15 (1992)

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Cite as: 505 U. S. 557 (1992)

Blackmun, J., dissenting

Justice O'Connor further agreed that a court considering an enhancement must determine whether and to what extent the attorney's compensation was contingent, as well as whether and to what extent that contingency was, or could have been, mitigated. Her concurrence added, however, an additional inquiry designed to make the market-based approach "not merely justifiable in theory but also objective and nonarbitrary in practice." Id., at 732. She suggested two additional "constraints on a court's discretion" in determining whether, and how much, enhancement is warranted. First, "district courts and courts of appeals should treat a determination of how a particular market compensates for contingency as controlling future cases involving the same market," and varying rates of enhancement among markets must be justifiable by reference to real differences in those markets. Id., at 733. Second, the applicant bears the burden of demonstrating that without an adjustment for risk "the prevailing party would have faced substantial difficul-ties in finding counsel in the local or other relevant market." Ibid. (internal quotation marks omitted).


After criticizing at some length an approach it admits respondents and their amici do not advocate, see ante, at 563- 564, and after rejecting the approach of the Delaware Valley II concurrence, see ante, at 564-565, the Court states that it "see[s] a number of reasons for concluding that no contingency enhancement whatever is compatible with the fee-shifting statutes at issue." Ante, at 565. I do not find any of these arguments persuasive.

The Court argues, first, that "[a]n attorney operating on a contingency-fee basis pools the risks presented by his various cases" and uses the cases that were successful to subsidize those that were not. Ibid. "To award a contingency enhancement under a fee-shifting statute," the Court concludes, would "in effect" contravene the prevailing-party


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