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Photo: Andrii Yalanskyi via Shutterstock Photo: Andrii Yalanskyi via Shutterstock

When Sigmund Freud wrote “anatomy is destiny” referring to women (S. Freud, On the Universal Tendency To Debasement in the Sphere of Love (1912)), he could have been referring to female litigants in New York divorces who try to enforce the law entitling them to have their husbands pay their lawyer’s bills. The reason lies in New York’s application of the “American Rule” of legal fee reimbursement requiring that a litigant in a lawsuit pays her own attorney fees, regardless of the outcome of the litigation (Derfner and Wolf, 1 Court Awarded Attorney Fees ¶ 1.02[1] at 109 (1992)) as distinguished from the “English Rule,” which requires the loser of a lawsuit to pay the winner’s legal fees (Kritzer, The English Rule, A.B.A. J., Nov. 1992, at 54, 55). The practice encompassed by the English Rule is called “fee shifting.” The main purpose of fee shifting is to compensate the prevailing party, promote public interest litigation, punish or deter the losing party for misconduct, or prevent abuse of the judicial system. Note, State Attorney Fee Shifting Statutes: Are We Quietly Repealing the American Rule? Law & Contemp. Probs., Winter 1984 at 321, 328-45.

The English rule, which allows an attorney fee to be awarded to the prevailing party, is followed in all major common law nations except the United States. Although the American rule has been widely criticized in recent years (see, e.g., Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif. L Rev. 792, 798-99 (1966)) it was reaffirmed by the Supreme Court as recently as 1975 (Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975)).

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