Low award, low fee?  

The Supreme Court, split 5-4, in 1992 concluded that in a 1983 action that yielded only nominal damages the reasonable fee was no fee. the broad language of Justice Thomas for the plurality  set the tone for pegging fees to damages under the Civil Rights Attorneys Fee Awards Act of 1976 [42 U.S.C. 1988].  But that obviously is a shallow approach to what it means to be a prevailing party – especially if forward looking equitable relief is achieved.  Awards that achieve “furthering the vindication and deterrence goals of § 1983” deserve to be recognized as substantially prevailing and support an award of fees. – gwc

h/t Torts Prof Blog

Thomas Eaton and Mike Wells have posted to SSRN Attorney’s Fees, Nominal Damages, and Section 1983 Litigation.  The abstract provides:

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 abridgment 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.

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