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Monday, March 30, 2015

Why state officials fall in line

If, as I have been arguing for the past two months, an injunction and opinion barring enforcement of a state's SSM ban has no formal effect on anyone other than the parties, the question becomes why state officials ever voluntarily change their behavior absent a binding court order and why they do not instead always  force new litigation and a new, directly controlling court order.

One reason is attorney's fees, which can escalate pretty quickly. See, for example, Wisconsin, where the state agreed to pay more than $ 1 million in attorney's fees to the ACLU for successfully challenging that state's SSM ban. True, the fees would be nowhere near this high for an individual Alabama probate judge forcing a new couple to sue him to obtain a license. But even low-level fees may provide an incentive for officials to fall in line, even if not formerly obligated to do so.

Posted by Howard Wasserman on March 30, 2015 at 04:15 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


In light of the Supreme Court's Buckhannon decision in 2001, I'm not sure that attorney's fees provide much of an incentive in this context to fall in line without forcing new litigation - though they do provide an incentive not to let that new litigation continue to judgment. A probate judge who waits for a couple to sue and then marries them to moot their case won't be liable for fees.

Posted by: Maureen Carroll | Mar 30, 2015 11:26:31 PM

Because people support the law as explained by the courts, at least to some extent, and politicians anticipate political sanctions for acting illegally?

Posted by: Paul Gowder | Mar 30, 2015 4:54:00 PM

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