285 at the Supreme Court

Dennis has a great summary on the main page. We had a debate here a while back where my view was the First Amendment was irrelevant.  I think the Supremes agree:


MR. PHILLIPS: Well, I have no doubt that Congress could well, I’m not sure about in all cases.

JUSTICE SCALIA: I mean, if it can do that, there’s certainly no First Amendment problem.

MR. PHILLIPS: Well, I’m not sure I concede that in all cases. I do think in the run of the mill cases, but when you’re talking about a situation where the assertion is that the conduct of the litigation, the bringing of the litigation itself is inappropriate

JUSTICE SCALIA: That’s an English rule. It used to be our rule. I don’t see how you can possibly say that it’s unconstitutional to make the loser pay.

JUSTICE KENNEDY: This is not your best argument. (Laughter.)

MR. PHILLIPS: It is not my best argument, I appreciate that.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

4 thoughts on “285 at the Supreme Court

  1. 3


    First, I’ve never heard of 285 being used to impose fees on the lawyers. Second, the text doesn’t answer the question: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” It doesn’t say who they come from.

    I believe that, ordinarily, what happens is the client says to the lawyers, “hey, you did this, not me” and it gets paid, indirectly, by the lawyers (absent fault by the client, obviously). But I don’t know that.

  2. 2

    David, I have actually been in court when the judge ordered an attorney to pay the other side’s attorney fees cause by his personal misconduct.

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