Public Nuisance and a Reimagined State Action Doctrine

2021 ◽  
Author(s):  
Shelley Ross Saxer
Keyword(s):  
State Action ◽  
Public Nuisance ◽  
State Action Doctrine

Constitutional Limitations

2018 ◽  
Author(s):  
Scott Burris ◽  
Micah L. Berman ◽  
Matthew Penn, and ◽  
Tara Ramanathan Holiday
Keyword(s):  
Public Health ◽  
Supreme Court ◽  
Due Process ◽  
Reproductive Rights ◽  
Court Cases ◽  
Health It ◽  
State Action ◽  
Substantive Due Process ◽  
State Action Doctrine ◽  
Due Process Rights

This chapter describes “due process,” a Constitutional restriction on governmental actions that impact individuals, in the context of public health. It outlines the doctrines of procedural and substantive due process, including the legal tests that courts apply to decide whether individuals’ due process rights have been violated. It uses examples from Supreme Court cases that have defined due process in the context of public health, including those that struggle to define the scope of reproductive rights. It also examines two cases where public health principles were raised as a justification for governmental action: one about involuntary sterilization and one about Ebola. The chapter concludes with a brief discussion of the “state action doctrine” that defines which public health actors may be challenged on due process grounds.

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.

What is Public? Big Questions Emerging from the Clash of Legal and Policy Paradigms

2020 ◽  
Author(s):  
Cullen C Merritt ◽  
Deanna Malatesta ◽  
Julia L Carboni ◽  
James E Wright ◽  
Sheila Suess Kennedy
Keyword(s):  
Common Ground ◽  
Theory And Practice ◽  
New Governance ◽  
State Action ◽  
The Public ◽  
Goods And Services ◽  
Administrative Framework ◽  
State Actors ◽  
Vantage Points ◽  
State Action Doctrine

Abstract This article draws on three main sources to define the constitutional boundaries for outsourcing public goods and services in the age of new governance: (1) public administration research related to public–private distinctions; (2) Office of Management and Budget (OMB) Circular A-76, federal policy on “inherently governmental” functions; and (3) the State Action Doctrine, the judiciary’s approach for distinguishing state actors from non-state actors for the purpose of redressing constitutional infringements. While these three sources have developed independently, approach the public–private debate from different vantage points, and allow significant ambiguities to remain, we contend that common ground can be leveraged theoretically to derive criteria to resolve many government outsourcing decisions in a way that is efficient and effective. Our main contribution is in providing first steps toward the development of a modern legal and administrative framework that aligns outsourcing theory and practice with the realities of new governance.

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