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

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.

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

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.

scholarly journals Things Invisible To See

2018 ◽  
Vol 5 (3) ◽  
pp. 439-504 ◽  
Author(s):  
Joseph William Singer ◽  
Isaac Saidel-Goley
Keyword(s):  
Common Law ◽  
The United States ◽  
The State ◽  
Equal Protection ◽  
Grocery Stores ◽  
Property Law ◽  
Equal Protection Clause ◽  
State Action ◽  
Constitutional Protection ◽  
State Action Doctrine

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather than shunned. This Article proposes reinterpreting the state action doctrine to mitigate its historical and contemporary harms. Ultimately, the Authors draw from property law theory to contend that the doctrine should be fundamentally reformed in favor of a more egalitarian conception of the state’s role in ensuring equal protection of law. The insights of property law theory lead the Authors to conclude that: (1) equal protection depends on law, not action; (2) common law is law and, whether it is coercive or permissive, it must comply with the Equal Protection Clause; and (3) common law that allows discriminatory exclusion from the marketplace violates the Equal Protection Clause. What matters, for the purposes of constitutional protection, is not “state action” but whether the law violates the norms of liberty, equality, and dignity recognized by free and democratic societies.

Constructing the State Action Doctrine, 1940–1990

2010 ◽  
Vol 35 (02) ◽  
pp. 273-310 ◽  
Author(s):  
Terri Peretti
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
The State ◽  
Sharp Decline ◽  
State Action ◽  
Regime Politics ◽  
Attitudinal Model ◽  
The Supreme Court ◽  
Nuanced Understanding ◽  
State Action Doctrine

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.

The State Action Doctrine and The Local Government Antitrust Act: The Restructured Public Hospital Model

1988 ◽  
Vol 14 (2-3) ◽  
pp. 171-219
Author(s):  
Theodore N. McDowel ◽  
J. Marbury Rainer
Keyword(s):  
Local Government ◽  
Public Hospital ◽  
The State ◽  
State Action ◽  
Hospital Facility ◽  
Practical Matter ◽  
Antitrust Analysis ◽  
The Impact ◽  
State Action Doctrine ◽  
Public Entity

This Article analyzes the development and complexities of the antitrust state action doctrine and the Local Government Antitrust Act as these doctrines apply to both “municipalities” and private entities. The restructuring of a public hospital is used as a model to facilitate the antitrust analysis. The restructuring model, which typically involves the leasing of a hospital facility by a public entity to a private nonprofit corporation, offers the unique opportunity to compare the different standards employed under the state action doctrine and the Local Government Antitrust Act. As a practical matter, the Article provides a framework for a public hospital to evaluate the impact of corporate restructuring on its antitrust liability exposure and to develop strategies to minimize antitrust risks.

The International Court of Prize

1911 ◽  
Vol 5 (2) ◽  
pp. 302-324
Author(s):  
James Brown Scott
Keyword(s):  
United States ◽  
Supreme Court ◽  
Foreign Relations ◽  
The United States ◽  
Judicial Power ◽  
Original Form ◽  
State Action ◽  
International Court ◽  
The Supreme Court ◽  
The Hague

On February 15, 1911, the Senate of the United States advised and consented to the ratification of the International Prize Court Convention adopted by the Second Hague Peace Conference and signed by the American delegates October 18, 1907. Although transmitted to the Senate with the various Hague conventions on February 27, 1908, and favorably recommended by the President and Secretary of State, action upon the convention was deferred by the Committee on Foreign Relations because the convention in its original form involved an appeal from the Supreme Court of the United States to the international court at The Hague. This feature of the otherwise acceptable convention raised doubts as to its constitutionality, because Article 3, section 1, of the Constitution provides that “ the judicial power of the United States shall be vested in one Supreme Court.” An appeal from the Supreme Court to the court at The Hague seemed to some inconsistent with this provision, for a court can not be considered supreme if an appeal lies from its decisions. To this it may be answered that the court to be established at The Hague is not a court of the United States, and, therefore, is not contemplated by the Constitution; for the Hague court is a diplomatic tribunal for the settlement of questions which would otherwise be adjusted by diplomacy, or referred to a mixed commission specially constituted for their determination, or which if not determined by either of these methods, might result in war.

The Constitution, the Supreme Court, and Religion

1967 ◽  
Vol 61 (3) ◽  
pp. 657-674 ◽  
Author(s):  
William A. Carroll
Keyword(s):  
United States ◽  
Public Schools ◽  
Supreme Court ◽  
National Policy ◽  
The United States ◽  
The State ◽  
Local School ◽  
The Supreme Court ◽  
Liberty Of Conscience ◽  
Bible Reading

The Supreme Court of the United States, whose decisions not only define constitutional law but vitally affect national policy, has long held both an honored and a controversial place in American life. In no area do its decisions bring it more honor or more controversy than in the field of religion; for, as a member of the First Congress under the Constitution said, “the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand. … Thus, the same decision of the Court may be hailed by some as a great landmark in the struggle for religious liberty, and denounced by others as a serious invasion of liberty of conscience. For although it may be pleasant to dream of religion insulated from governmental touch, the dual membership of citizens in the state and in religious bodies insures that conscience and government will touch at some points with inevitable friction, and, to the conscience so touched, it makes little difference whether the governmental hand is that of a local school board, the Congress, or the Supreme Court of the United States.The Court has recently been attacked as antireligious, or at least as callous to our religious heritage, because of its decisions invalidating a state-prescribed prayer and state-prescribed Bible reading in public schools. The first of these decisions prompted the more excited outcry, but the two, at first singly and then together, have precipitated a renewed debate about the proper constitutional relationship between the state and religion.

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