Constructing the State Action Doctrine, 1940–1990

According to the state action doctrine, the Constitution restricts the activities of governmental but not private entities. Despite this rule's apparent simplicity, the Supreme Court has been clearly uncomfortable with precedents like Shelley v. Kraemer (1948) and has varied considerably in its receptiveness to state action claims from 1940 to 1990. The attitudinal model provides barely a beginning in accounting for both Shelley and changes in state action limitations. While liberal justices did initially relax state action requirements and conservative justices subsequently tightened them, that explanation ignores changes in the NAACP's litigation strategy, the Court's creation of doctrinal alternatives, and powerful civil rights legislation that together produced a sharp decline in state action claims involving race after 1970. These nonattitudinal “regime politics” factors enable a more complete and nuanced understanding of the state action field and help us to see the Court as collaborative rather than independent, dependent, or countermajoritarian.

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Canons of Evasion in Constitutional Criminal Law

The New Criminal Justice Thinking ◽

10.18574/nyu/9781479831548.003.0007 ◽

2017 ◽

Author(s):

Sharon Dolovich

Keyword(s):

Supreme Court ◽

Criminal Law ◽

Judicial Review ◽

The State ◽

The Other ◽

State Action ◽

The Supreme Court ◽

The Face ◽

The One ◽

The Right

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

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National institute of family and life advocates (NIFLA) : V. Becerra, or the right to be informed about your own reproductive rights.

Soft Power ◽

10.14718/softpower.2019.6.2.18 ◽

2019 ◽

Vol 6 (2) ◽

pp. 322-346

Author(s):

Vitulia Ivone

Keyword(s):

Civil Rights ◽

Supreme Court ◽

Free Speech ◽

Reproductive Rights ◽

The State ◽

Fundamental Issue ◽

Health Clinics ◽

The Supreme Court ◽

History Of ◽

The Right

The Supreme Court has issued its decision in NIFLA v. Becerra, a 5–4 vote holding that the state of California cannot compel pregnancy-resource centers to advertise for the state’s abortion services. This decision represents a considerable victory for both the right to free speech and the conscience rights of pro-life Americans. The case concerned California’s Reproductive FACT Act, which mandated that both licensed and unlicensed women’s-health clinics (crisis-pregnancy or pregnancy-resource centers) not performing abortions had to provide a pre-written notice to clients. Though the law related specifically to abortion, free speech was the fundamental issue at stake. This paper analyzes the history of abortion in US legislation and the perspective of one of its fundamental civil rights.

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Antitrust Immunity: State Action and Federalism, Petitioning and the First Amendment

10.31235/osf.io/9fc3a ◽

2016 ◽

Author(s):

Mark Lemley

Keyword(s):

Supreme Court ◽

First Amendment ◽

United States Supreme Court ◽

The United States ◽

The State ◽

State Action ◽

Antitrust Laws ◽

The Subject ◽

Antitrust Immunity ◽

State Action Doctrine

In recent years, the United States Supreme Court has focused increasingattention on two doctrines that provide immunity from antitrust liabilityfor certain anticompetitive activity: the state action doctrine and thepetitioning immunity doctrine (sometimes known as the Noerr-Penningtondoctrine, after the two cases that established it). These doctrines havebeen the subject of seven Supreme Court decisions in as many years. Inspite of (or perhaps because of) the Court’s numerous recent decisions,there remains a great deal of confusion about the source and the scope ofthese doctrines. This Article attempts to clarify both doctrines.The Supreme Court and a number of commentators contend that the antitrustimmunity doctrines are the product of statutory interpretation of theantitrust laws themselves. The Court contends that petitioning and stateaction are “essentially dissimilar” to the types of business activity theantitrust laws were designed to regulate. This Article disagrees. Bothpetitioning and state action present precisely the sorts of problems withwhich the antitrust laws are concerned — exploitation of consumers throughthe charging of supracompetitive prices.To determine the source of antitrust immunity, the Court must look beyondthe antitrust laws to the constitutional principles that are implicated bythe doctrines. For the state action doctrine, the constitutional principleat stake is largely one of federalism, and the more general democraticprinciples embodied in the Court’s non-delegation jurisprudence. For thepetitioning immunity doctrine, the First Amendment protection of speech andpetitioning provides the relevant principles. After examining the source ofthe antitrust immunity doctrines, this Article considers the appropriatescope of those doctrines in light of the constitutional principles at issue.

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From the Company Town to the Innovation Zone: Frontiers of Public Policy, the State Action Doctrine, and the First Amendment

British Journal of American Legal Studies ◽

10.2478/bjals-2021-0006 ◽

2021 ◽

Vol 0 (0) ◽

Author(s):

Bruce Peabody ◽

Kyle Morgan

Keyword(s):

Economic Trend ◽

The United States ◽

The State ◽

Company Town ◽

Religious Literature ◽

State Action ◽

The Supreme Court ◽

Private Power ◽

National Constitution ◽

State Action Doctrine

Abstract This article draws on the state action doctrine and the case Marsh v. Alabama to evaluate a recent proposal to create an unprecedented public-private partnership in the state of Nevada. In Marsh, the Supreme Court of the United States held that a private citizen was protected under the U.S. Constitution's First and Fourteenth Amendments in distributing religious literature on the sidewalk of a “company-owned” town. We make the case that both the state policy under consideration and a number of political and economic trend lines indicate that the issue central to Marsh remains pressing at the start of our new millennium: what are the circumstances under which concentrated private power amounts to something akin to government authority, thereby implicating the protections of the national Constitution? Our goal in this piece is not to offer an exhaustive or thorough review of the particulars of the “Innovation Zone” bill under consideration, but to consider, in advance, constitutional problems that might arise from granting corporations broad powers traditionally wielded by governments.

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A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

Southern African Public Law ◽

10.25159/2522-6800/4027 ◽

2019 ◽

Vol 34 (2) ◽

Author(s):

Sipho Stephen Nkosi

Keyword(s):

Supreme Court ◽

The State ◽

The Other ◽

Customary Law ◽

Eastern Cape ◽

High Court ◽

Nelson Mandela ◽

The Supreme Court ◽

Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

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The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

Southern African Public Law ◽

10.25159/2522-6800/3531 ◽

2017 ◽

Vol 30 (1) ◽

pp. 112-121

Author(s):

Shamier Ebrahim

Keyword(s):

Supreme Court ◽

Waiting Lists ◽

The State ◽

Waiting List ◽

Allocation Process ◽

The Supreme Court ◽

The Right ◽

The Impact ◽

Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

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PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

JURNAL HUKUM DAN PERADILAN ◽

10.25216/jhp.7.2.2018.213-236 ◽

2018 ◽

Vol 7 (2) ◽

pp. 213

Author(s):

Budi Suhariyanto

Keyword(s):

Supreme Court ◽

Criminal Law ◽

Administrative Law ◽

The State ◽

Government Officials ◽

Criminal Process ◽

The Supreme Court ◽

State Finance ◽

The Law ◽

To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

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