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In Monroe v Pape, over an impassioned dissent by Justice Frankfurter, the Supreme Court held that Section 1983 authorized suits against state and local officials for constitutional violations even if those violations were not authorized by state or local law.  But it also held that cities and other local governmental entities could not be sued under the statute.  Monell v. Department of Social Services overruled Monroe and held that cities could be sued under the statute.  But it added an odd limitation that became known as the “Monell doctrine”: local governments could not be sued for their employees’ constitutional wrongs on a respondeat superior basis, i.e., they could not be sued unless they had actually authorized the constitutional violation.  This article examines the papers of the Supreme Court Justices to find an explanation for the Court’s adoption of this odd limitation.   It suggests that the Monell doctrine resulted from the interplay between two justices: Justice Powell who believed that Frankfurter had been right and that no defendants should be liable unless their constitutional violations were authorized by state or local law, and Justice Brennan who believed he needed Powell’s vote to muster a majority to make cities liable at all.  In the end, each obtained a partial victory: local governments were subjected to Section 1983 liability, but that liability was limited to constitutional violations that were authorized by local government itself.  The result was that Frankfurter’s position on  “color of law” was partially resurrected to protect cities but not their employees.

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Fordham Law Review