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Attorney’S Fees, Nominal Damages, And Section 1983 Litigation, Thomas A. Eaton, Michael L. Wells

William & Mary Bill of Rights Journal

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 …