Section 1983 no longer serves as a remedial statute for the people most in need of its protection. Those who have suffered a violation of their civil rights at the hands of state authorities, but who cannot afford a lawyer because they have only modest damages or seek only equitable remedies, are foreclosed from relief because lawyers shun their cases. Today civil rights plaintiffs are treated the same as ordinary tort plaintiffs by the private bar: without high damages, civil rights plaintiffs are denied access to the courts because no one will represent them. Congress understood that civil rights laws are only as good as their enforcement. When Congress passed the Civil Rights Attorney's Fees Awards Act of 1976, it wanted to ensure that meritorious claims would be heard and that all illegal conduct would be deterred. The enforcement mechanism that Congress chose-fee-shifting-guaranteed access to the courts even when damages were modest or the form of relief was equitable. So-called "private attorneys general" would accept all meritorious claims, knowing that if they won they would be paid by the liable defendants at reasonable market rates pursuant to the fee-shifting provisions of the law. In 1986, however, in Evans v. Jeff D., the U.S. Supreme Court allowed defendants to condition settlement of civil rights cases on the waiver or reduction of plaintiffs' attorney's fees. Two decades later, it is evident that Evans destroyed the enforcement mechanism of the Civil Rights Act. Today civil rights plaintiffs who have only modest damages or who seek equitable relief are without a remedy. Although fee waivers (and their effects) were the subject of much debate after Evans was decided, in recent years the issue has dropped off the radar screen. It is time for Congress to amend the Fees Act in order to resurrect section 1983 as the robust remedial law Congress meant it to be.
Reingold, Paul D. "Requiem for Section 1983." Duke J. Const. L. & Pub. Pol'y 3 (2008): 1-47.