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Attorney’S Fees, Nominal Damages, And Section 1983 Litigation, Thomas A. Eaton, Michael Wells
Attorney’S Fees, Nominal Damages, And Section 1983 Litigation, Thomas A. Eaton, Michael Wells
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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 Jury's Constitutional Judgment, Nathan Chapman
The Jury's Constitutional Judgment, Nathan Chapman
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Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?
This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the …