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 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 a large quantity of highly meritorious cases involving the abridgement 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.