When the Law Values Lawyers Over Truth: Why Pro Se Litigants Deserve Fair Pay

In 1991, the U.S. Supreme Court decided Kay v. Ehrler (499 U.S. 432 (1991), link to ruling), ruling that citizens who represent themselves in court — “pro se” litigants — cannot recover attorney’s fees, even if they win.

The case is only seven pages long, but its impact on citizen justice has lasted for decades.

I believe that ruling was wrong then — and it is even more wrong today.

We live in a very different America than we did in 1991, one even more different than the 1970s when Congress debated attorney-fee legislation. Today, many of our state and federal laws are unjust, outdated, or flatly unconstitutional. Legislatures, both state and federal, have become largely inactive or paralyzed by partisanship. The executive branch has long been captured by two political behemoths — exactly what our first President warned us about.

Before the 1991 decision in Kay, the federal appeals circuit courts usually held that while licensed attorneys might recover fee-shifting awards (under statutes like Civil Rights Attorneys’ Fees Awards Act (codified at 42 U.S.C. § 1988(b))), non-lawyer pro se litigants could not. Their reasoning was that Congress’s statutory scheme presumed an attorney-client relationship, one in which an independent lawyer would bring “detached” judgment, thereby filtering out weak claims and preserving judicial resources. Indeed, that argument has merit.

However, there has always been the minority view, including in the legal history, that allowed fees for attorney-pro-se litigants, reasoning that such suits advance the public interest by compelling government compliance (see Cuneo v. Rumsfeld, 553 F.2d 1360, (D.C. Cir. 1977), link here).

Indeed, Congress passed § 1988 through the Civil Rights Attorneys’ Fees Awards Act of 1976 (Pub. L. 94-559) specifically to “ensure effective access to the judicial process” for victims of discrimination by enabling prevailing parties in key civil-rights actions to recover a “reasonable attorney’s fee as part of the costs.” Therefore, the legislative intent was not simply to shift costs, but to empower individuals — especially those without deep resources — to bring enforcement actions that otherwise would lie dormant. By denying fee awards for non-lawyer pro se litigants, the courts effectively limited that intent, restricting who could afford to vindicate rights in court.

That leaves the judiciary — the least funded but most intact branch of government — as the last working mechanism for citizens to correct injustice. And yet, under Kay v. Ehrler, the citizens most willing to shoulder that burden must do so at their own expense.

If capable, educated Americans are willing to take on unjust laws and can later recover fair compensation for their legitimate time and costs, we empower “We the People.” And this isn’t a partisan idea, it’s the very intention of the Constitution and the Fourteenth Amendment. The concept of attorney’s-fee recovery was designed to ensure that citizens could vindicate civil rights. The Court’s 1991 decision undermined that purpose by creating a perverse incentive: either hire an attorney (if you can afford one!) or accept that your time, no matter how effectively used, has no value in the eyes of the law.

In my current civil-rights cases — challenging several Oregon statutes as unconstitutional — I intend to preserve this issue for appellate and Supreme Court review. The claim is simple: time is time, no matter who spent it fighting for civil rights. A person’s labor defending constitutional rights does not suddenly lose value because it’s spent pro se instead of through counsel. When citizens do the work that government lawyers or private firms would otherwise bill for, justice should not penalize their independence. And when American citizens do the work their State legislatures avoid for decades, they deserve compensation.

I believe most conflicts can and should be resolved constructively. Of course, I reached out to my State and federal elected officials before filing these constitutional challenges. Impressively, all responded, but unfortunately, all gave some variant of the excuse that family law reform wasn’t on their “legislative agenda” for this term. Translation: there aren’t a million voters passionate about these issues; there aren’t millions of dollars for my re-election campaign if I support this; so it’s just not a big deal to me. Such has become our government.

But this principle remains larger than any single case, as it’s about access to justice, and ensuring that ordinary Americans can use the courts, as our founders intended, to challenge unconstitutional laws without facing financial ruin. While I truly believe most Americans have the same passion for our nation that I do, many may not have my background or resources: I’m fortunate enough to be able to spend time on this pursuit, and I see it as my civic duty to challenge these unjust laws. If Kay were overturned, it would incentivize even greater numbers of Americans to participate more fully as Americans. More could investigate their state laws, debate them with other residents, and prepare and file federal, facial challenges, with the possibility that, if successful, there could be reasonable compensation for time spent. Failed, “frivolous” lawsuits are never rewarded (under the existing precedent), but “pro se” citizens cannot be compensated under Kay, and I believe that’s wrong. If Kay were overturned, Americans would need to fund and trail the federal judiciary even better — a challenge for all of us in Congress — but it’s the right thing to do.

For years, I have also argued that every law should carry a sunset provision. If we required periodic review and renewal of old statutes, we wouldn’t have so many unconstitutional relics still on the books. But our state legislators — focused more on reelection than reflection — rarely revisit the laws they pass. That leaves the burden on citizens and courts to restore constitutional balance.

If Kay v. Ehrler is ever overturned, it won’t just help me. It will help every American who has the courage to stand up — carefully, lawfully, and on their own — for fairness and truth. Please share this message with your federal elected officials so they can consider Congressional action on this topic!