Attorney’s Fees, Nominal Damages, and Section 1983 Litigation

51 Pages Posted: 21 Oct 2015 Last revised: 13 May 2016

See all articles by Thomas A. Eaton

Thomas A. Eaton

University of Georgia Law School

Michael Lewis Wells

University of Georgia School of Law

Date Written: October 20, 2015

Abstract

Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.

We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented and the factual record is opaque regarding what and how the plaintiff’s constitutional rights were violated. These complexities render Farrar a poor case upon which to frame a rule regarding the relationship between damage awards and the proper calculation of attorney’s fees. Second, the “low award, low fee” approach is inconsistent with congressional intent. When Congress enacted § 1988 it emphasized the public benefit of vindicating constitutional rights and deterring constitutional violations. No less important, it recognized that the harms caused by constitutional wrongs often are not easily measured in terms of traditional monetary remedies – a circumstance that would discourage attorneys from taking on the representation of plaintiffs in this important set of cases. The low award/low fee approach contravenes these purposes because it effectively discourages the bringing of large numbers of highly meritorious cases involving the abridgement of constitutional rights. Indeed, the effect of this approach is perverse, because it blocks the recovery of meaningful attorney’s fees in the very set of low damages-serious constitutional wrong cases in which the need to incentivize the provision of legal services is most pressing.

Keywords: 42 U.S.C. § 1983, attorney's fees, Farrar v. Hobby, constitutional torts, Civil Rights Attorney’s Fees Awards Act, prevailing party, constitutional rights, fee shifting, nominal damages, low award low fee

JEL Classification: K13, K19, K41

Suggested Citation

Eaton, Thomas A. and Wells, Michael Lewis, Attorney’s Fees, Nominal Damages, and Section 1983 Litigation (October 20, 2015). William & Mary Bill of Rights, Forthcoming; UGA Legal Studies Research Paper No. 2015-32. Available at SSRN: https://ssrn.com/abstract=2676640

Thomas A. Eaton

University of Georgia Law School ( email )

225 Herty Drive
Athens, GA 30602
United States
706-542-5177 (Phone)
706-542-5556 (Fax)

Michael Lewis Wells (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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