Remedies and Respect: Rethinking the Role of Federal Judicial Relief

ARTICLES

Remedies and Respect: Rethinking the Role of

Federal Judicial Relief

RACHEL BAYEFSKY*

Plaintiffs bringing civil lawsuits often express sentiments like “I just

wanted the defendants to admit they were wrong” and “we’re worth

something and can’t be treated this way.” These statements suggest that

civil litigation is not only a vehicle for material redress. It can also be a

quest for more intangible forms of relief—respect, dignity, or vindication.

But are these the kinds of interests that courts imposing remedies may

legitimately satisfy? In analyzing divergent responses to this question,

this Article illuminates the bounds of courts’ remedial authority.

According to an inf‌luential line of reasoning in federal courts, which

the Article identif‌ies and calls the “circumscribed” approach, the central

remedial task is to change the material circumstances of the parties to a

lawsuit. On this view, federal courts are not meant to provide “moral”

or “psychic” satisfaction. The Article reveals the impact of the circum-

scribed approach in a variety of doctrinal areas, including class action

mootness, nationwide injunctions, and attorney’s fees. The effect of this

approach, the Article argues, is to def‌ine appropriate judicial relief in

ways that shortchange litigants for whom a true remedy requires courts

to take due account of their dignity.

The Article then articulates and justif‌ies an alternative approach: a

remedy that takes effect by expressing respect for the party whose rights

were violated is a constitutionally legitimate, normatively desirable, and

practically feasible exercise of federal judicial authority. This alternative

view has several implications. For example, it provides a basis for courts

to impose “symbolic” remedies like nominal damages; to treat an admis-

sion of liability from the defendant as a prerequisite of full relief for the

plaintiff; and to issue nationwide injunctions in order to address stigma

directed at a group to which the plaintiff belongs. In addition to high-

lighting these practical consequences, the Article draws out theoretical

* Associate Professor of Law, University of Virginia School of Law, beginning July 2021. © 2021,

Rachel Bayefsky. For comments on the Article, many thanks to Ariela Anhalt, Peter Bozzo, Zachary

Clopton, William Eskridge, Richard Fallon, John Goldberg, Tara Grove, Andrew Hammond, Vicki

Jackson, Amy Kapczynski, Jesse Kaplan, Jerry Mashaw, Nicholas Parrillo, James Pfander, Todd Rakoff,

Teddy Rave, Judith Resnik, Reva Siegel, Meng Jia Yang, and several workshop audiences. Thanks to

Dillon Grimm for valuable research assistance, and to the editors of The Georgetown Law Journal for

their insightful editing work.

1263

ramif‌ications for the nature of a judicial remedy. The result is a distinc-

tive and fuller view of federal courts’ remedial authority.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1265

I. MARKING THE BOUNDS OF COMPLETE RELIEF . . . . . . . . . . . . . . . . . . . . . . 1270

A. COMPLETE RELIEF AND THE CIRCUMSCRIBED APPROACH: AN

OVERVIEW.............................................. 1270

B. “COMPLETE RELIEF” AND MOOTNESS DOCTRINE. . . . . . . . . . . . . . . . . 1273

1. Class Action Mootness and Federal Judicial Remedies . . 1274

2. Nominal Damages and “Effectual Relief”. . . . . . . . . . . . 1277

C. PREVAILING PARTIES AND ATTORNEY’S FEES. . . . . . . . . . . . . . . . . . . 1281

D. NATIONWIDE INJUNCTIONS AND COMPLETE RELIEF . . . . . . . . . . . . . . 1285

II. DIGNITY, RESPECT, AND FEDERAL JUDICIAL REMEDIES . . . . . . . . . . . . . . . 1288

A. DIGNITY AND RESPECT: DEFINITIONS AND SOCIAL SIGNIFICANCE . . . 1289

B. DIGNITY AND RESPECT: LEGAL AND EMPIRICAL IMPACT . . . . . . . . . . 1293

1. Dignity, Respect, and Legal Sources. . . . . . . . . . . . . . . . 1294

2. Litigation and the Quest for Respect: The Empirical

Angle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1300

C. MAKING THE REMEDIAL CONNECTION . . . . . . . . . . . . . . . . . . . . . . . . 1305

1. The Role of Expressive Remedies. . . . . . . . . . . . . . . . . . 1305

2. When an Expressive Remedy Is Warranted. . . . . . . . . . . 1311

3. Courts, Defendants, and the Expression of Respect . . . . . 1313

4. Expressive Remedies, Procedure, and Collectivities . . . . 1316

D. OBJECTIONS TO THE EXPRESSIVE ACCOUNT . . . . . . . . . . . . . . . . . . . . 1317

1. The Historical Objection. . . . . . . . . . . . . . . . . . . . . . . . . 1318

2. The Advisory Opinion Objection . . . . . . . . . . . . . . . . . . 1320

III. APPLYING THE EXPRESSIVE ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1321

A. MOOTNESS AND MONETARY OFFERS . . . . . . . . . . . . . . . . . . . . . . . . . . 1322

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B. MOOTNESS AND NOMINAL DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . 1325

C. PREVAILING PARTIES AND ATTORNEY’S FEES. . . . . . . . . . . . . . . . . . . 1328

D. NATIONWIDE INJUNCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1331

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1334

INTRODUCTION

“[W]e’re real people here and we’re not worth dirt,” declared a plaintiff bring-

ing suit against an insurance company.

1

“People should have dignity in their

lives,” one medical malpractice plaintiff explained, while another expressed an

interest in having the defendant “admit[] he made an awful mistake.”

2

Sentiments

like these suggest that civil litigation is not exclusively a vehicle for securing ma-

terial benef‌it. It can also be a way to pursue an interest in something more intangi-

ble: dignity, respect, or vindication. But is this the kind of interest that courts

imposing judicial remedies may legitimately satisfy?

Dignity and respect are powerful social forces—resonating, for example, in

movements challenging racial injustice,

3

unequal treatment of women,

4

and stig-

matization of same-sex relationships.

5

Yet dignity is often criticized as malleable,

diff‌icult to measure, or too contested to apply fairly.

6

It may be questioned, then,

whether courts should be engaged in promoting dignity or in repairing dignitary

harm.

This Article focuses on the interaction between courts and dignity with respect

to a particular issue: what counts as a proper federal judicial remedy? As a doctri-

nal matter, this question arises when federal courts are tasked with deciding

whether parties have received “complete relief” or litigation satisfaction. To take

a few examples, courts can declare suits moot if the plaintiffs have received com-

plete relief.

7

Under many civil rights statutes, plaintiffs may receive attorney’s

1. Stephen Meili, Collective Justice or Personal Gain? An Empirical Analysis of Consumer Class

Action Lawyers and Named Plaintiffs, 44 AKRON L. REV. 67, 93 (2011).

2. Tamara Relis, “It’s Not About the Money!”: A Theory on Misconceptions of Plaintiffs’ Litigation

Aims, 68 U. PITT. L. REV. 701, 730, 737 (2007).

3. See, e.g., Christopher A. Bracey, Dignity in Race Jurisprudence, 7 U. PA. J. CONST. L. 669, 671

(2005) (“The struggle for racial justice in America, then, is perhaps best understood as a struggle to

secure dignity in the face of sustained efforts to degrade and dishonor persons on the basis of color.”).

4. See, e.g., Catharine A. MacKinnon, Ref‌lections on Sex Equality Under Law, 100 YALE L.J. 1281,

1298 (1991) (“Like other inequalities, but in its own way, the subordination of women is socially

institutionalized, cumulatively and systematically shaping access to human dignity, respect, resources,

physical security, credibility, membership in community, speech, and power.”).

5. See Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015) (“[D]enial to same-sex couples of the right

to marry . . . . [S]erves to disrespect and subordinate [gays and lesbians].”).

6. See, e.g., Ruth Macklin, Dignity Is a Useless Concept: It Means No More than Respect for Persons

or Their Autonomy, 327 BRIT. MED. J. 1419, 1419 (2003); Jeffrey Rosen, The Dangers of a

Constitutional ‘Right to Dignity,’ ATLANTIC (Apr. 29, 2015), https://www.theatlantic.com/politics/

archive/2015/04/the-dangerous-doctrine-of-dignity/391796.

7. See, e.g., County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).

2021] REMEDIES AND RESPECT 1265