Page:Baker Botts L.L.P. v. ASARCO LLC.pdf/6

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“Our basic point of reference when considering the award of attorney’s fees is the bedrock principle known as the American Rule: Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise.” Hardt v. ''Reliance Standard Life Ins. Co.'', 560 U. S. 242, 252–253 (2010) (internal quotation marks omitted). The American Rule has roots in our common law reaching back to at least the 18th century, see Arcambel v. Wiseman, 3 Dall. 306 (1796), and “[s]tatutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar [legal] principles,” Fogerty v. Fantasy, Inc., 510 U. S. 517, 534 (1994) (internal quotation marks and ellipsis omitted). We consequently will not deviate from the American Rule “ ‘absent explicit statutory authority.’ ” Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 602 (2001) (quoting Key Tronic Corp. v. United States, 511 U. S. 809, 814 (1994)).

We have recognized departures from the American Rule only in “specific and explicit provisions for the allowance of attorneys’ fees under selected statutes.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 260 (1975). Although these “[s]tatutory changes to [the American Rule] take various forms,” Hardt, supra, at 253, they tend to authorize the award of “a reasonable attorney’s fee,” “fees,” or “litigation costs,” and usually refer to a “prevailing party” in the context of an adversarial “action,” see, e. g., 28 U. S. C. §2412(d)(1)(A); 42 U. S. C. §§1988(b), 2000e–5(k); see generally Hardt, supra, at 253, and nn. 3–7 (collecting examples).

The attorney’s fees provision of the Equal Access to Justice Act offers a good example of the clarity we have required to deviate from the American Rule. See 28 U. S. C. §2412(d)(1)(A). That section provides that “a court shall