Academic

Peretti on the State Action Doctrine

By Lawrence Solum

Terri L. Peretti (Santa Clara University) has posted The Rise and Fall of the State Action Doctrine 1940-1990 on SSRN.  Here is the abstract:

According to the state action doctrine, the Constitution restricts the activities of governmental but not private entities. The rule's apparent simplicity is deceptive, as the Court's willingness to find state action varied considerably in the five decades from 1940 to 1990. While the attitudinal model offers a good beginning in accounting for these developments --- liberal justices initially relaxed state action requirements and conservative justices subsequently tightened them --- that explanation is incomplete. It ignores important contextual factors, such as Congressional enactment and Executive enforcement of powerful civil rights legislation, the Court's creation of doctrinal alternatives to state action and, as a result of these developments, a sharp decline in state action claims containing race after 1970. These non-attitudinal, "regime politics" factors enable a more complete and nuanced understanding of the rise and fall of state action in the mid to late twentieth century, leading us to see the Court as collaborative, rather than independent, dependent, or counter-majoritarian.

Full post as published by Legal Theory Blog on January 02, 2009 (boomark / email).