My forthcoming Article is divided into the following parts. In Part I, I survey relevant aspects of the law of § 1983 and Bivens. Painting with a broad brush and for the most part descriptively, I maintain that the Court’s concern with over-deterrence has increasingly dominated constitutional torts. In Part II, I address the relevance of that concern for supervisory liability, set out what the Court said about supervisory liability in Iqbal and very briefly summarize the pre-Iqbal circuit consensus on supervisory liability. In Part III, I delve more deeply into the nature of supervisory liability and conclude that the Court, although without any real analysis, reached the correct result in Iqbal. Section 1983’s legislative history, its language and, especially, policy considerations, all cut in favor of the constitutional approach under which it is the relevant constitutional provision that supplies the requisite state of mind, or fault. However, to the extent that Iqbal’s adoption of the constitutional approach to supervisory liability was motivated by a concern with over-deterrence, I argue that this concern will not necessarily be advanced. It all depends on the particular constitutional violation. Finally, I address the glaring inconsistency between Iqbal’s constitutional approach and City of Canton’s deliberate indifference standard for § 1983 local government liability for failure to train. The Court in City of Canton explicitly and incorrectly grounded this standard on the causation approach under which the requisite state of mind, or fault, is supplied by § 1983. Local government liability under § 1983 must, of course, be based on an official policy or custom which, when implemented by local government officials or employees, causes a constitutional deprivation. But the official policy or custom requirement, like the personal involvement requirement for all individual liability, is really all about constitutional accountability and should be grounded on the constitutional approach.
Constitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal (2010) (symposium),
Lewis & Clark L. Rev.
Available at: http://scholarship.kentlaw.iit.edu/fac_schol/415