Recovering damages from municipalities has proven a vexing challenge
for civil rights litigators. Scholars have demonstrated a range of doctrinal and
practical challenges, chief among them the demands of the “policy or custom”
standard imposed by the Supreme Court in Monell. In previous work,
coauthor Leong has argued that the theory of municipal failure to supervise
offers an underexplored and promising avenue for recovery. This Article
offers an empirical examination of the claim that a municipality failed to
supervise its employees as a means to establish policy or custom. It provides
a novel and comprehensive survey of every failure-to-supervise case decided
since 1980 in each of the twelve federal appellate circuits, exploring
opportunities and challenges for litigants in each jurisdiction. In addition to
providing an important resource for judges and litigators confronting the
failure-to-supervise theory, it also highlights variation among (and
occasionally within) jurisdictions and offers practical and concrete advice for
successful litigation of such claims.
