Need help finding a source!

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sach1282
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Need help finding a source!

Postby sach1282 » Tue Dec 03, 2013 8:30 pm

Hey TLS!

I was talking to my note adviser, and he mentioned that someone had written about letting the level of state involvement affect the interest-balancing analysis in state action cases (i.e., a particularly severe infraction from an entity not quite a state actor, or a innocuous violation coming from an entity that is barely a state actor). In other words, I need to know who has written about amalgamating the state action analysis: changing it from a threshold inquiry into a more comprehensive analysis that lets the level of state involvement counterbalance the interests in play.

My advier thinks Lawrence Tribe may have written about it, but I can't find anything. Does this ring any bells for anyone? Please, it would be a huge help.

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sap
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Re: Need help finding a source!

Postby sap » Wed Dec 04, 2013 3:10 am

To be clear, you're not talking about all of the articles that advocate a "totality of the circumstances" inquiry, right? I just read a few of those and could send them your way.

I think you might be thinking about Mark Tushnet maybe? I read this article recently: "THE FORMAL STATE ACTION DOCTRINE AND FREE SPEECH ANALYSIS, John Fee" 183 N.C. L. Rev. 569. He cites Tushnet for some sort of interest-balancing propositions. You might check out the Yee article also, as it has some suggestions about interest balancing and there may be other relevant citations.

Here's the relevant passage, I think, at 594-596:
An advantage of the formal state action approach is that it allows courts to tailor the scrutiny of government actor and private actor relationships to the particular constitutional right at stake. Rather than employ a one-size-fits-all functional test to protect a wide range of constitutional values, a formal state action doctrine examines the public versus private relationship, including functional aspects of that relationship, in relation to the text and values of specific constitutional provisions. Given the variety of provisions, normative values, and historical experiences that make up constitutional law, this flexibility and precision is essential for reasonable constitutional analysis.
Accordingly, some constitutional provisions, like the Takings and Due Process Clauses, should in general prohibit the government from authorizing private actors to do those things that are also forbidden to the government. For example, government may not authorize, without compensation, one individual to trespass permanently on the land of another, regardless of the government's intent.107 One does not need a functional state action test to reach this result; it is the government's authorization for the trespass that is unconstitutional. In some cases, these clauses might even impose an affirmative duty on government officials to protect rights of life, liberty, and property against private injury.
Other provisions, such as the Establishment and Speech Clauses, do not generally prevent the government from authorizing private conduct that would be forbidden to the government. Otherwise, it would be unconstitutional for the government to give a building permit for the construction of a private church. Instead, the Establishment Clause prohibits government authorizations of religious conduct only where there is an illegitimate governmental purpose or discriminatory effect behind the authorization or where the authorization creates the appearance of government endorsement.
Yet another provision, the Equal Protection Clause, should inquire further into broader social effects and a historical concern for particular groups. Thus, while it may generally be constitutional for government to allow private individuals to act in a racially discriminatory manner (something, of course, government itself may not do), and even sometimes to enforce the racist choices of private property owners, there is a limit to this principle where property rights are used systemically to block minorities from important benefits such as housing. The issue in Shelley v. Kraemer, therefore, more accurately should have been phrased as whether the state's enforcement of privately created, racially discriminatory covenants caused such a severe disparate impact for African-Americans that such enforcement would deny equal protection of the law, rather than whether the racist terms of the covenant should be attributed to the government, as if the government had authored them directly. Understood in this manner, Shelley is distinctively an equal protection/housing case; it does not imply that all private covenants must comply with all constitutional rules if they are to be enforceable.
Given the variety of rights and values that the Constitution protects, it is implausible to expect a generic functional state action doctrine to police adequately the relationship between government and private actors for all constitutional purposes. A formal approach to state action does not try. Instead, it serves appropriately to frame and limit the relevant constitutional question, which in every case must be decided under some specific constitutional provision.

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sach1282
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Re: Need help finding a source!

Postby sach1282 » Wed Dec 04, 2013 1:15 pm

Yeah, I've read that article. It's been very useful, even though after reading it three times I'm still not entirely sure what a "formal" state action doctrine is.

I've been looking through the "totality of the circumstances" articles, and most of them seem to be taking language from cases like Brentwood and arguing that the totality of the circumstances is relevant to making the threshold determination that state action is present or not.

I'm not looking for that. Rather, I'm looking for a source that does not treat the state action determination as a threshold inquiry, and instead amalgamates it with the next step of the inquiry (be it interest balancing, or whatever else).




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