Alternatives to the State Action Doctrine in the Era of Privatization, Mandatory Arbitration, and the Internet: Directing Law to Serve Human Needs
DOI:
https://doi.org/10.12957/publicum.2018.35530Keywords:
teoria da ação estatal, privatização, arbitragem, state action doctrine, Mandatory Arbitration, privatizationAbstract
In U.S. constitutional law, the state action doctrine — attaching the protections of individual rights to government action — is notoriously confusing, if not incoherent. Though the doctrine is already known for its “lack of clarity,[1]” commentators compete in rhetorical flourishes, describing the doctrine “a collection of arbitrary rules,[2]” “a conceptual disaster area,[3]” and, my personal favorite, “a torchless search for a way out of a damp echoing cave.[4]” Yet, satisfying the “state action” requirement is a precondition for judicial enforcement of individual rights. This very fact is sadly a key reason for the doctrine’s incoherence. It is the threshold question —the door — into the room of rights; all the pressures and desires to apply and to resist rights tear it from its hinges. Thus, while the basic inquiry over whether the challenged action took place under the auspices of government seems intuitive, the case law over time has created a patchwork quilt of tests and precedents defining who counts as a government actor, when nongovernmental actors may nonetheless be treated as acting with governmental authority, and when a given action involves sufficient indications of governmental authority to give rise to the constitutional limitations that ensure accountability for public values[5].
[1] Emily Chiang, No State Actor Left Behind: Rethinking Section 1983 Liability in the Context of Disciplinary Alternative Schools and Beyond, 60 BUFF. L. REV. 615, 643 (2012).
[2] Wilson R. Huhn, The State Action Doctrine and the Principle of Democratic Choice, 34 HOFSTRA L. REV. 1379, 1380 (2006).
[3] Charles. L. Black, Jr., Foreword: “State Action,” Equal Protection, and California’s Proposition 14, 81 HARV. L. REV. 69, 95 (1967).
[4] Charles. L. Black, Jr., Foreword: “State Action,” Equal Protection, and California’s Proposition 14, 81 HARV. L. REV. 69, 95 (1967).
[5] See infra Section I
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