Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

State action doctrine

Discipline
Institution
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 53

Full-Text Articles in Law

Social Media, The Modern Public Forum: The State Action Doctrine And Resurrection Of Marsh, Erika L. Andersen Jan 2024

Social Media, The Modern Public Forum: The State Action Doctrine And Resurrection Of Marsh, Erika L. Andersen

Mitchell Hamline Law Review

No abstract provided.


The State Of The State Action Doctrine: A Search For Accountability, Jordan Goodson Jan 2021

The State Of The State Action Doctrine: A Search For Accountability, Jordan Goodson

Touro Law Review

The state action doctrine is notoriously confusing and contradictory. It is also a weak mechanism for enforcing the constitutional accountability of both State and private actors. Many solutions to the doctrine's varied issues have been posed, but as of yet its problems have not been resolved. In fact, they continue to worsen, as increasing privatization combines with the doctrine's restrictions to narrow constitutional liability to the point of potential nullity. This article examines the doctrine's failures through the specific lens of accountability, demonstrating through analysis of recent caselaw how the doctrine — along with creating confusion and countless circuit splits …


Deplatformed: Social Network Censorship, The First Amendment, And The Argument To Amend Section 230 Of The Communications Decency Act, John A. Lonigro Jan 2021

Deplatformed: Social Network Censorship, The First Amendment, And The Argument To Amend Section 230 Of The Communications Decency Act, John A. Lonigro

Touro Law Review

No abstract provided.


Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton Jan 2021

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …


The Rhetoric Of Constitutional Law, Erwin Chemerinsky Aug 2019

The Rhetoric Of Constitutional Law, Erwin Chemerinsky

Erwin Chemerinsky

I spend much of my time dealing with Supreme Court opinions. Usually, I download and read them the day that they are announced by the Court. I edit them for my casebook and teach them to my students. I write about them, lecture about them, and litigate about them. My focus, like I am sure most everyone's, is functional: I try to discern the holding, appraise the reasoning, ascertain the implications, and evaluate the decision's desirability. Increasingly, though, I have begun to think that this functional approach is overlooking a crucial aspect of Supreme Court decisions: their rhetoric. I use …


Sector Agnosticism And The Coming Transformation Of Education Law, Nicole Stelle Garnett Apr 2017

Sector Agnosticism And The Coming Transformation Of Education Law, Nicole Stelle Garnett

Journal Articles

Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private-school choice devices like vouchers, tax credits and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors—discussed in detail below—that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. …


Sector Agnosticism And The Coming Transformation Of Education Law, Nicole Stelle Garnett Mar 2017

Sector Agnosticism And The Coming Transformation Of Education Law, Nicole Stelle Garnett

Nicole Stelle Garnett

Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private-school choice devices like vouchers, tax credits and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors—discussed in detail below—that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. …


A Conceptual Disaster Zone Indeed: The Incoherence Of The State And The Need For State Action Doctrine(S), Brookes Brown Dec 2015

A Conceptual Disaster Zone Indeed: The Incoherence Of The State And The Need For State Action Doctrine(S), Brookes Brown

Maryland Law Review

No abstract provided.


Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp Apr 2015

Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay analyzes the Supreme Court's 2015 decision in the North Carolina Dental case, assessing its implications for federalism. The decision promises to re-open old divisions that had once made the antitrust "state action" doctrine a controversial lightning rod for debate about state economic sovereignty.

One provocative issue that neither the majority nor the dissenters considered is indicated by the fact that nearly all the cartel customers in the Dental case were located within the state. By contrast, the cartel in Parker v. Brown, which the dissent held up as the correct exemplar of the doctrine, benefited California growers …


A Contract Theory Of Academic Freedom, Philip Lee Jan 2015

A Contract Theory Of Academic Freedom, Philip Lee

Faculty Publications

(Excerpt)

Academic freedom is central to the core role of professors in a free society. Yet, current First Amendment protections exist to protect academic institutions, not the academics themselves. For example, in Urofsky v. Gilmore, six professors employed by various public colleges and universities in Virginia challenged a law restricting state employees from accessing sexually explicit material on computers owned or leased by the state. The professors claimed, in part, that such a restriction was in violation of their First Amendment academic freedom rights to conduct scholarly research. The Fourth Circuit upheld the law and noted that “to the …


A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee Jun 2014

A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee

All Faculty Scholarship

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to …


Tyranny By Proxy: State Action And The Private Use Of Deadly Force, John L. Watts Feb 2014

Tyranny By Proxy: State Action And The Private Use Of Deadly Force, John L. Watts

Notre Dame Law Review

The Article begins in Part I with a discussion of the Supreme Court’s opinion and holding in Tennessee v. Garner. It then describes the continuing application of the fleeing felon rule to private actors despite the Court’s holding in Garner.

Part II describes the state action doctrine, examines its history, and clarifies its purpose. It explains why the Court’s early focus on enhancing individual autonomy and federalism as the purpose of the state action doctrine was only partially correct. In fact, the doctrine enhances many of the familiar constitutional strategies for the prevention of tyranny including: separation of powers, democratic …


Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee Jan 2014

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

All Faculty Scholarship

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …


State Action Problems, Christian Turner Jan 2013

State Action Problems, Christian Turner

Scholarly Works

The state action doctrine is a mess. Explanations for why federal courts sometimes treat the private actions of private parties as public actions subject to the Constitution, like the Supreme Court did in Shelley v. Kraemer, are either vastly overinclusive or fail to explain our law and values. A better approach is to understand the state action doctrine in institutional terms. I introduce a two-step, institutionally focused state action theory that is a natural consequence of a broader public/private theory of legal systems. In the first step, a court identifies a “state action problem,” meaning a privately made law that …


Counterparts In Modern Policing: The Influence Of Corporate Investigators On The Public Police And A Call For The Broadening Of The State Action Doctrine, Sean James Beaton Sep 2012

Counterparts In Modern Policing: The Influence Of Corporate Investigators On The Public Police And A Call For The Broadening Of The State Action Doctrine, Sean James Beaton

Touro Law Review

This Comment first provides an overview of the constitutional concerns that arise when the private police interact with criminal defendants, and the even graver issues that are present when this interaction also involves governmental law enforcement. Part III presents an in depth look at private police, with some detail focused specifically on corporate investigators who work in conjunction with public law enforcement. After assessing this ubiquitous group, Part IV harmonizes the private police and the state action doctrine. Because the state action doctrine has been classified as not being a "model of consistency" and a "conceptual disaster area," the analysis …


Law's Public/Private Structure, Christian Turner Jul 2012

Law's Public/Private Structure, Christian Turner

Scholarly Works

Often derided for its incoherence or uselessness, the public/private distinction is rarely studied explicitly outside the state action doctrine in Constitutional Law. To ignore this distinction, however, is to miss the most fundamental sorting criterion in our law. Distinguishing whether public or private entities control (a) law creation and definition and (b) prosecution leads to a simple yet powerful taxonomy of legal systems. The taxonomy characterizes legal systems in terms of control over decisionmaking by our most basic institutional forms: the public and private. Thus, the proper categorization of laws within the system, for example whether a policy should be …


The Nyse As State Actor?: Rational Actors, Behavioral Insights & Joint Investigations, Steven Cleveland Jun 2012

The Nyse As State Actor?: Rational Actors, Behavioral Insights & Joint Investigations, Steven Cleveland

Steven J. Cleveland

No abstract provided.


What Is The Meaning Of Health? Constitutional Implications Of Defining 'Medical Necessity' And 'Essential Health Benefits' Under The Affordable Care Act, B. Jessie Hill Jan 2012

What Is The Meaning Of Health? Constitutional Implications Of Defining 'Medical Necessity' And 'Essential Health Benefits' Under The Affordable Care Act, B. Jessie Hill

Faculty Publications

One consequence of the Affordable Care Act (ACA) is that government will come to play a more extensive role in healthcare decision-making by individuals and their providers. The ACA does not directly regulate access to health services, but by means of a system of funding, mandates, and penalties, it essentially requires many employers to provide, and most individuals to carry, a certain minimum level of health insurance. Governmental decisions about which medical services qualify as medically necessary and appropriate may take on a new and greater importance, because government officials will be required to decide what sorts of procedures must …


Clarifying State Action Immunity Under The Antitrust Laws: Ftc V. Phoebe Putney Health System, Inc., Angela M. Diveley Jan 2012

Clarifying State Action Immunity Under The Antitrust Laws: Ftc V. Phoebe Putney Health System, Inc., Angela M. Diveley

St. Thomas Law Review

In Part I of this Article, I set forth the current landscape of the state action doctrine. In Part II, I explain the FTC's and the Eleventh Circuit's applications of the doctrine, highlighting the main points of contention that warrant clarification by the United States Supreme Court. I discuss the Court's interpretive options on certiorari in Part There, I argue the Court should impose a higher standard than the Eleventh Circuit under the first prong of the test, which asks whether a state has clearly articulated a policy of displacing competition. I also explain a conflict between the FTC and …


Government By Contract And The Structural Constitution, Kimberly L. Wehle Dec 2011

Government By Contract And The Structural Constitution, Kimberly L. Wehle

All Faculty Scholarship

Although private parties have performed government functions throughout most of Western history, mainstream administrative law scholarship is dotted with concerns over the extent to which modern federal government activities are outsourced to private contractors. Federal contractors routinely exercise authority that is classically “executive” in nature. They write regulations, interpret laws, administer foreign aid, manage nuclear weapons sites and intelligence operations, interrogate detainees, control borders, design surveillance systems, and provide military support in combat zones. Administrative law places few constraints on private contractors, and prevailing constitutional principles — the state action and private delegation doctrines, in particular — are either inept …


Concerted Action And The Preemption Of State Fair Trade Provisions After Leegin, Christopher J. Heck May 2009

Concerted Action And The Preemption Of State Fair Trade Provisions After Leegin, Christopher J. Heck

Christopher J. Heck

ABSTRACT The issue of whether a state fair trade statue or regulation designed to protect domestic retailers or wholesalers should be preempted under the Supremacy Clause of the United States Constitution and the Sherman Antitrust Act has vexed states, courts and litigants ever since the Supreme Court first recognized the doctrine of state action immunity in Parker v. Brown more than 65 years ago. Decisions in this area are often ambiguous and contradictory. Currently, litigants who challenge a state fair trade act or regulation must prove first that the statute in question creates inadequately regulated “concerted action” or a “meeting …


Concerted Action And The Preemption Of State Fair Trade Provisions After Leegin, Christopher J. Heck May 2009

Concerted Action And The Preemption Of State Fair Trade Provisions After Leegin, Christopher J. Heck

Christopher J. Heck

ABSTRACT The issue of whether a state fair trade statue or regulation designed to protect domestic retailers or wholesalers should be preempted under the Supremacy Clause of the United States Constitution and the Sherman Antitrust Act has vexed states, courts and litigants ever since the Supreme Court first recognized the doctrine of state action immunity in Parker v. Brown more than 65 years ago. Decisions in this area are often ambiguous and contradictory. Currently, litigants who challenge a state fair trade act or regulation must prove first that the statute in question creates inadequately regulated “concerted action” or a “meeting …


Concerted Action And The Preemption Of State Fair Trade Provisions After Leegin, Christopher J. Heck May 2009

Concerted Action And The Preemption Of State Fair Trade Provisions After Leegin, Christopher J. Heck

Christopher J. Heck

ABSTRACT The issue of whether a state fair trade statue or regulation designed to protect domestic retailers or wholesalers should be preempted under the Supremacy Clause of the United States Constitution and the Sherman Antitrust Act has vexed states, courts and litigants ever since the Supreme Court first recognized the doctrine of state action immunity in Parker v. Brown more than 65 years ago. Decisions in this area are often ambiguous and contradictory. Currently, litigants who challenge a state fair trade act or regulation must prove first that the statute in question creates inadequately regulated “concerted action” or a “meeting …


Concerted Action And The Preemption Of State Fair Trade Provisions After Leegin, Christopher J. Heck May 2009

Concerted Action And The Preemption Of State Fair Trade Provisions After Leegin, Christopher J. Heck

Christopher J. Heck

ABSTRACT The issue of whether a state fair trade statue or regulation designed to protect domestic retailers or wholesalers should be preempted under the Supremacy Clause of the United States Constitution and the Sherman Antitrust Act has vexed states, courts and litigants ever since the Supreme Court first recognized the doctrine of state action immunity in Parker v. Brown more than 65 years ago. Decisions in this area are often ambiguous and contradictory. Currently, litigants who challenge a state fair trade act or regulation must prove first that the statute in question creates inadequately regulated “concerted action” or a “meeting …


Concerted Action And The Preemption Of State Fair Trade Provisions After Leegin, Christopher J. Heck May 2009

Concerted Action And The Preemption Of State Fair Trade Provisions After Leegin, Christopher J. Heck

Christopher J. Heck

ABSTRACT The issue of whether a state fair trade statue or regulation designed to protect domestic retailers or wholesalers should be preempted under the Supremacy Clause of the United States Constitution and the Sherman Antitrust Act has vexed states, courts and litigants ever since the Supreme Court first recognized the doctrine of state action immunity in Parker v. Brown more than 65 years ago. Decisions in this area are often ambiguous and contradictory. Currently, litigants who challenge a state fair trade act or regulation must prove first that the statute in question creates inadequately regulated “concerted action” or a “meeting …


Poder Privado Y Derechos: Eficacia Horizontal Y Ponderación De Los Derechos Fundamentales, Pablo Contreras Jan 2009

Poder Privado Y Derechos: Eficacia Horizontal Y Ponderación De Los Derechos Fundamentales, Pablo Contreras

Pablo Contreras

¿A quiénes obligan los derechos fundamentales? La pregunta parece, a primera vista, sencilla de responder. Los derechos fundamentales -esto es, determinadas posiciones subjetivas garantizadas por el Derecho a nivel constitucional- debiesen ser entendidos mínimamente como una esfera de protección frente a las intervenciones o agresiones de cualquier agente. Es decir, los derechos fundamentales protegen al individuo de toda intromisión, sin importar su origen. Esta intuición originaria, sin embargo, contradice parte importante del pensamiento tradicional en materia de derechos, concebidos, desde su origen, como barreras frente al poder estatal.

"Pablo Contreras se ha propuesto abordar uno de los problemas más decisivos, …


Privacy And The New Virtualism, Jonathon Penney Jan 2009

Privacy And The New Virtualism, Jonathon Penney

Articles, Book Chapters, & Popular Press

First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also analyzes legal norms within virtual spaces while drawing connections to our experience in real space. I call this the New Virtualism. Situated within this emerging scholarship, this article offers a new approach to privacy in virtual spaces by drawing on what Orin …


Less Is More: Decluttering The State Action Doctrine, Julie K. Brown Apr 2008

Less Is More: Decluttering The State Action Doctrine, Julie K. Brown

Missouri Law Review

The focus of this law summary is the tenuous distinction between state and private actors, examining both the various state action determinative tests proffered by the United States Supreme Court as well as the circuit courts' application of these tests. Although the Supreme Court has dealt extensively with the issue of state action, and circuit courts have faithfully applied the highest court's tests, problems remain. Many of the Supreme Court's tests are very narrow, proffered in response to carefully defined factual situations. Therefore, whether explicitly in the opinion or a result of later interpretation, most of these tests can only …


The Religious Freedom Restoration Act And Smith: Dueling Levels Of Constitutional Scrutiny, Whitney Travis Sep 2007

The Religious Freedom Restoration Act And Smith: Dueling Levels Of Constitutional Scrutiny, Whitney Travis

Washington and Lee Law Review

No abstract provided.


When Courts Shouldn't Take The Initiative: Section 2 Of The Voting Rights Act, Initiative Petitions, And Operation King's Dream, Francesca Ambrosio Jan 2007

When Courts Shouldn't Take The Initiative: Section 2 Of The Voting Rights Act, Initiative Petitions, And Operation King's Dream, Francesca Ambrosio

Michigan Law Review

This Note argues that interpreting section 2 to exclude initiative proposals during their circulation phase is the only way to avoid insurmountable statutory construction problems and constitutional objections. It grounds the theoretical discussion of the VRA in an analysis of how the court applied section 2 in Operation King's Dream. Part I provides the legal landscape of a section 2 claim, including relevant legislative history and the essential elements of a successful claim. Part II contends that because no voting takes place during the petition phase of a proposal, petition circulation can neither deny nor abridge the right to …