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Vanderbilt Law Review

First Page

2129

Abstract

May 17, 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education.' This precise day also marked the sixty-first anniversary of the Supreme Court's first use of the phrase "private attorney general." For about three decades after this initial 1943 appearance, the private attorney general concept surfaced only occasionally in the legal literature. Starting in the 1970s, however, its presence became quite regular, and that regularity has escalated steadily to the present: on average, during the past fifteen years, every single workday, somewhere in the United States, some judge has written a legal opinion or some scholar has penned an article invoking the private attorney general concept.

That the phrase is employed so frequently suggests its utility as a concept. What is odd, though, is that when probed, the concept proves surprisingly mercurial. The phrase is sometimes used to refer to plaintiffs, occasionally used to refer to defendants, and typically used to refer to lawyers. (What other concept is so malleable that it can be deployed to signify either a plaintiff or a defendant, a lawyer or a client?) Legislatures create private attorneys general by statute, but before they did and when they have not, courts have created them by judicial decision, and executive agencies by fiat. Congress creates private attorneys general, but so do state legislatures, state courts, and state administrative agencies. The phrase is an integral part of the doctrine of standing? and of the rules concerning attorneys' fees. In its single most important decision about private attorneys general, the United States Supreme Court ruled that the Constitution necessarily restrains the concept, while simultaneously implying that courts of equity nonetheless retain inherent powers to propagate it.

If there is any fixed star in this constellation, it is that the private attorney general is a placeholder for any person who mixes private and public features in the adjudicative arena. Yet even that compass point proves elusive, as there are so many players who mix public and private functions in so many different ways that the concept holds the place for a motley cast of disparate characters. "Anyone," one commentator argues, "can call himself a 'private attorney general.' " While scholars and judges have often stated that the private attorney general performs a mix of public and private functions, they have much less frequently attended to the variety of different public-private mixes contained within this rubric.

My goal in this Article is to map these mixes-to distill from the singular private attorney general concept a range of distinct private attorneys general-and then to convince the reader that this new taxonomy is a helpful heuristic device. I take as the template for the logic of my argument Alfred Kinsey's taxonomy of sexual orientations, an analogy that may be distant in content but is nonetheless similar in form. Kinsey, a taxonomist by training, rebelled against society's insistence that human sexuality occurred in but two diametrically opposed forms: heterosexual and homosexual.

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