Publication Date



In Uzuegbunam v. Preczewski the Supreme Court held for the first time that federal-court jurisdiction exists over a § 1983 case that presents only a claim for nominal damages. As a result, such claims remain subject to adjudication even when the plaintiff’s request for prospective relief, targeting an allegedly unlawful practice, has been mooted by the government’s discontinuance of the thus-challenged behavior. In dissent, Chief Justice Roberts maintained that the majority’s ruling clashed with Article III’s “personal stake” requirement and also unwisely permitted plaintiffs to sidestep controlling jurisdictional rules by adding a meaningless claim for nominal damages to a complaint centered on securing prospective injunctive relief. He also asserted that defendants in the future could dodge the Court’s ruling by simply depositing one dollar into a bank account in the plaintiff’s name, thus negating the existence of a continuing case or controversy by fully satisfying the plaintiff’s only remaining request for relief. The Court in Uzuegbunam did not address this question. Justice Kavanaugh and the Solicitor General, however, have agreed that defendants can rid themselves of § 1983 nominal-damages suits by putting this tactic—which I call the “Roberts Stratagem”—to use.

In this Article, I argue they are wrong. The linchpin of my argument is that the benefits of § 1983 nominal-damages litigation are substantial. More specifically, I contend that those benefits so greatly outweigh any countervailing costs that plaintiffs, as a rule, should be able to press forward with claims for nominal damages even in the face of a defendant’s attempted use of the Roberts Stratagem. At bottom, the Chief Justice underestimates the importance both to victims of government wrongdoing and to society as a whole of the federal courts’ vindication of fundamental constitutional rights. He also fails to appreciate that other means exist for curbing any threat to Article III values posed by the majority’s validation of nominal-damages suits. In the end, the Chief Justice rightly emphasizes the importance of those values. But he also seeks, in this context, to safeguard them in far too crude of a way.