Fee Shifting, Nominal Damages, and the Public Interest

Authors

Maureen Carroll

Document Type

Article

Abstract

(Excerpt)

Half a century ago, Joseph Davis Farrar sued six defendants for seventeen million dollars. Farrar had owned and operated a school for troubled teens, and after one of the students died, the State of Texas obtained a temporary injunction that closed the school. Farrar alleged that the defendants—including William P. Hobby, Jr., the lieutenant governor of Texas—had violated his civil rights in connection with the closure. After ten years of litigation, a jury ruled in favor of five of the six defendants, but it “found that Hobby had ‘committed an act or acts under color of state law that deprived Plaintiff Joseph Davis Farrar of a civil right.’ ”

The jury’s verdict did not specify which of Hobby’s actions were unlawful or which of Farrar’s rights were violated. Whatever the offending conduct might have been, the jury found that it had not proximately caused any damages to Farrar. The district court thus entered judgment against Hobby for nominal damages. Farrar then sought attorney’s fees under 42 U.S.C. § 1988, which entitles a civil rights plaintiff who is a “prevailing party” to recover a “reasonable” attorney’s fee from the defendant.

By enacting statutes like Section 1988, Congress has made pro-plaintiff fee shifting available in civil rights litigation and other areas in which the government relies on private enforcement to further public goals. Recognizing the role of private litigation in these statutory schemes, the Supreme Court of the United States has referred to plaintiffs in fee-shifting cases as “private attorney[s] general.” It is sometimes said that these private attorneys general fill enforcement gaps left by public actors, but in many of these areas, private lawsuits vastly outnumber government actions. Accordingly, it would be more accurate to describe government actions as the gap-filler and private enforcement as the main event.