42 U.S.C. § 1988

What It Is

42 U.S.C. § 1988 is the fee-shifting statute that accompanies § 1983. It authorizes federal courts to award reasonable attorney fees to the “prevailing party” in civil rights cases.

Congress enacted § 1988 because it recognized that without fee-shifting, most civil rights violations would go unremedied — the damages are often too small to justify the cost of litigation.

How It Works

• Prevailing plaintiffs receive fees as a matter of course, calculated by the lodestar method (reasonable hours × reasonable rate)
• Prevailing defendants receive fees only if the plaintiff’s case was “frivolous, unreasonable, or without foundation”
• The court has discretion to adjust the fee award based on the degree of success, complexity, and other factors

Why It Matters

§ 1988 is supposed to be the engine that makes § 1983 work. Without it, only wealthy people could afford to enforce their constitutional rights. With it — in theory — attorneys have an incentive to take civil rights cases because the defendant pays the legal fees if the plaintiff wins.

In practice, the combination of qualified immunity, the nominal damages problem, and judicial reduction of fee awards has significantly weakened this incentive. See No One Will Take My § 1983 Case.

Key Cases

• Hensley v. Eckerhart, 461 U.S. 424 (1983) — Lodestar method
• Farrar v. Hobby, 506 U.S. 103 (1992) — Nominal damages may yield zero fees
• Buckhannon Board & Care Home v. West Virginia DHHR, 532 U.S. 598 (2001) — “Prevailing party” requires court-ordered change