As the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but the only reasonable fee for such a plaintiff might be “no fee at all.”

As this Article explains, the Court’s opinion in Farrar v. Hobby is an outlier among both the Court’s nominal-damages cases and its fee-shifting cases. It has led to significant confusion in the lower courts, and in one manifestation of that confusion, many courts have resolved fee disputes by looking to their own views of the public interest value of the litigation. Not only is that approach unwise, but it is also contrary to constraints the Supreme Court has imposed in other fee-shifting cases. The Court or Congress should step in to clarify matters. In the meantime, lower courts should abandon the public-interest inquiry that many of them have adopted.


Civil Procedure | Law and Economics | Litigation | Public Law and Legal Theory

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