Con Law 2 Outline

Con Law 2 Outline - The State Action Doctrine: State Action...

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The State Action Doctrine: State Action Doctrine: The constitution's protections of individual liberties and its requirement for equal protection apply only to the government. Private conduct generally does not have to comply with the Constitution. First question: Is the defendant the government? The general rule is that government has to be behind the action or the constitution doesn’t apply. Policy: 1) Preserves a zone of personal autonomy by limiting the reach of federal law and judicial power 2) Enhances federalism by preserving a zone of state sovereignty. 3) Government generally has far more power than private entities - and has a monopoly on the use of force to accomplish its objectives. Exceptions to the state action requirement - where private conduct has to comply with the Constitution. 1) Public Function doctrine - a private entity must comply with the Constitution if it is performing a task that has been traditionally , exclusively done by the government; or 2) Entanglement exception - private conduct must comply with the Constitution if the government has authorized , encouraged , or facilitated the unconstitutional conduct. i. Note: Many cases involve discussion of both exceptions Factors in the Public Function Doctrine a) For a private company with a state granted monopoly, must look if there has long been private companies ( Jackson) ELABORATE ON THIS b) The management of private property ( Marsh ) running a city is a public function, and thus exercises power that has been traditionally exclusively reserved to the state. c) The control of the electoral process (did not cover) d) The running or regulating of schools (did not cover) Entanglement exception arises in four primary areas 1) Judicial and law enforcement action a. Shelly v. Kramer Judicial action is state action. Courts cannot enforce racially restrictive covenants because private contractual agreements must comply with the constitution. i. To allow otherwise would have the court facilitating discrimination. ii. Look at the level of discrimination as a major factor to balance with all the state actor factors. iii. EXAM NOTE: pile up the facts. The more facts you can compile, the better argument you can make that state action exists. b. Two other areas where the court is involved as a basis for state action: i. Lugar v. Edmonson Oil was state action when a creditor obtained a writ of prejudgment attachment from a court and sheriff enforced it. Two part test: 1. the deprivation must be caused by the state (CL, statutory law, Court) 2. the person must fairly be said to be a state actor a. Dissent- The actor merely followed the law and it would be unjust to have it bear the cost of engaging in "state action." b. Notice issue : how would the private company know that they were going to be bound by the constitution? ii.
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Con Law 2 Outline - The State Action Doctrine: State Action...

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