A Dollar for Your Thoughts: Determining Whether Nominal Damages Prevent an Otherwise Moot Case from Being an Advisory Opinion

By Maura B. Grealish

This Note examines whether nominal damages should sustain an otherwise
moot constitutional claim. A majority of circuit courts have held that a lone
claim for nominal damages is sufficient. A minority of circuit courts have
determined that nominal damages are insufficient because there is no
practical effect in determining such a case. The courts in the minority
analogize nominal damages to declaratory judgments and justify their
rulings on the basis of judicial economy. This Note proposes that the
minority rule is impermissible under current precedent from the U.S.
Supreme Court. However, this Note also proposes that the majority rule be
adjusted slightly to address the concerns and criticisms of the minority rule.
This Note argues that courts should scrutinize the lone claim for nominal
damages and require that plaintiffs allege a specific incident of constitutional
deprivation to ensure that there is an ongoing case and controversy. Finally,
this Note suggests that the Supreme Court provide more guidance to federal
courts on the doctrine of mootness.