Achtenberg on Taking History Seriously: Municipal Liability Under Sec. 1983 and the Debate over Respondeat Superior

David Achtenberg, UMKC School of Law, has posted a recent article that contributes to the discussion of how to argue about history in contemporary legal analysis. His piece is Taking History Seriously: Municipal Liability Under 42 U.S.C. §1983 and the Debate over Respondeat Superior. It appeared in the Fordham Law Review. Here's the abstract:

The Monell doctrine - the most important obstacle to municipal § 1983 liability for constitutional wrongs - hangs by a thread. Four Justices of the United States Supreme Court have called for reexamination of Monell's conclusion that cities are exempt from respondeat superior liability for their employees' unconstitutional conduct. Plaintiffs' civil rights lawyers wait only for the right case and a single change in the Court's personnel before urging the Court to overturn Monell.

This Article is intended to provide those lawyers - and those who will oppose them - with a comprehensive, accurate examination of the relevant historical background, and an equally comprehensive description of new historical arguments for overruling Monell and for reaffirming it. This new work is needed because Monell relies on an historical analysis that is simply wrong, while Monell's critics rely on an analysis that is so incomplete that it is grossly misleading. Each side relies on history, but neither side has its history right.

The following pages attempt to correct and complete the historical record. Part I describes the current standards for municipal § 1983 liability under Monell: the rejection of respondeat superior and the creation of four categories of conduct for which cities can be held liable. It then discusses the idiosyncratically narrow nature of those four categories.

Part II shows that Monell's historical arguments for rejecting municipal respondeat superior are wrong. It explains that Monell ignored the actual nineteenth-century rationales for respondeat superior and as a result misinterpreted the rejection of a proposal (known as the Sherman Amendment) to make cities liable for injuries resulting from Ku Klux Klan depredations. It demonstrates that the rejection of that proposal not only was consistent with the nineteenth-century rationales for respondeat superior but also was compelled by those rationales.

Part III shows that Monell's opponents' current arguments are equally counter-historical. It explains that, while nineteenth-century common law did recognize municipal respondeat superior, the practical significance of that recognition was drastically diminished by a doctrine that treated a large and crucial group of city-paid workers as employees of the state rather than the city. As a result, incorporation of nineteenth-century common law rules would not, as Monell's opponents suggest, lead to restoration of meaningful municipal respondeat superior.

Part IV attempts to reframe the arguments on sound historical foundations. Part IV.A suggests that the Court should treat § 1983 as implicitly incorporating substantive nineteenth-century common law doctrine. It then shows that the now-forgotten (but then well-known) public officer liability doctrine provides a solid historical foundation both for Monell's rejection of respondeat superior and for its four theories of municipal liability. Section B attacks the foundation of that approach and suggests that the enacting Congress would have expected courts to treat the common law not as a set of ironclad rules, but instead as a flexible decision-making process in which unchanging fundamental principles - in this case, the rationales for respondeat superior - were applied to a changing world. It then shows that application of that process to current municipal employment relations would lead to reinstating respondeat superior.