Nominal Damages as Vindication

Abstract

A recent Supreme Court decision inspired a resurgence of interest in an old mystery: how can nominal damages vindicate a plaintiff for past harm? The Court relied on the longstanding common law practice of entitling a plaintiff to sue for violation of her rights, even without demonstrating harm in fact, and to recover nominal damages. Courts have long asserted that awarding nominal damages in such suits vindicates the plaintiff. But they have not explained just how awarding $1 provides vindication, and serious observers scoff at the idea that it does. This Article offers a theory of vindication through nominal damages litigation. It argues that permitting suits for nominal damages enables courts to function as producers of presumptively reliable reputation-relevant information. Plaintiffs pursue, and courts have long allowed, lawsuits for nominal damages when these suits might provide information that effectively remedies or deters harm.

Keywords: nominal damages, reputation, private ordering, Uzuegbunam, standing, redressability, constitutional torts

JEL Classification: K12, K19, K20, K41, K42, O17