A Constitutional Forecast: Demise of the "State Action" Limit on the Equal Protection Guarantee

1966 ◽  
Vol 66 (5) ◽  
pp. 855 ◽  
Author(s):  
John Silard
Keyword(s):  
The State ◽  
Equal Protection ◽  
State Action

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.

When the State Speaks, What Should It Say?

2012 ◽  
Author(s):  
Corey Brettschneider
Keyword(s):  
Freedom Of Expression ◽  
The State ◽  
Hate Groups ◽  
New Approach ◽  
State Action ◽  
Democratic State ◽  
Theory Of Value ◽  
The Right ◽  
Equal Citizenship ◽  
The Ideal

How should a liberal democracy respond to hate groups and others that oppose the ideal of free and equal citizenship? The democratic state faces the hard choice of either protecting the rights of hate groups and allowing their views to spread, or banning their views and violating citizens' rights to freedoms of expression, association, and religion. Avoiding the familiar yet problematic responses to these issues, this book proposes a new approach called value democracy. The theory of value democracy argues that the state should protect the right to express illiberal beliefs, but the state should also engage in democratic persuasion when it speaks through its various expressive capacities: publicly criticizing, and giving reasons to reject, hate-based or other discriminatory viewpoints. Distinguishing between two kinds of state action—expressive and coercive—the book contends that public criticism of viewpoints advocating discrimination based on race, gender, or sexual orientation should be pursued through the state's expressive capacities as speaker, educator, and spender. When the state uses its expressive capacities to promote the values of free and equal citizenship, it engages in democratic persuasion. By using democratic persuasion, the state can both respect rights and counter hateful or discriminatory viewpoints. The book extends this analysis from freedom of expression to the freedoms of religion and association, and shows that value democracy can uphold the protection of these freedoms while promoting equality for all citizens.

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.

scholarly journals Securitisation gaps: Towards ideational understandings of state weakness

2021 ◽  
pp. 1-20
Author(s):  
Kevork Oskanian
Keyword(s):  
The State ◽  
Collective Knowledge ◽  
State Action ◽  
Role Of The State ◽  
Wide Range ◽  
State And Society ◽  
Interpretive Approach ◽  
Recent Developments ◽  
The Republic

Abstract This article contributes a securitisation-based, interpretive approach to state weakness. The long-dominant positivist approaches to the phenomenon have been extensively criticised for a wide range of deficiencies. Responding to Lemay-Hébert's suggestion of a ‘Durkheimian’, ideational-interpretive approach as a possible alternative, I base my conceptualisation on Migdal's view of state weakness as emerging from a ‘state-in-society's’ contested ‘strategies of survival’. I argue that several recent developments in Securitisation Theory enable it to capture this contested ‘collective knowledge’ on the state: a move away from state-centrism, the development of a contextualised ‘sociological’ version, linkages made between securitisation and legitimacy, and the acknowledgment of ‘securitisations’ as a contested Bourdieusian field. I introduce the concept of ‘securitisation gaps’ – divergences in the security discourses and practices of state and society – as a concept aimed at capturing this contested role of the state, operationalised along two logics (reactive/substitutive) – depending on whether they emerge from securitisations of the state action or inaction – and three intensities (latent, manifest, and violent), depending on the extent to which they involve challenges to state authority. The approach is briefly illustrated through the changing securitisation gaps in the Republic of Lebanon during the 2019–20 ‘October Uprising’.

Symposium on the State and Economic Development

1990 ◽  
Vol 4 (3) ◽  
pp. 3-7 ◽  
Author(s):  
Pranab Bardhan
Keyword(s):  
Economic Development ◽  
Latin American ◽  
State Intervention ◽  
The State ◽  
Market Mechanism ◽  
State Action ◽  
South Korean ◽  
American Experience ◽  
Advantages And Disadvantages ◽  
Role Of The State

The role of the state in economic development is one of the oldest topics in economics, yet controversies rage with similar passion and camps are divided on lines today broadly similar to the early writings. Though the authors of the papers in this symposium present different views, they all refuse to pose the question as a simple choice between the market mechanism and state intervention. Larry Westphal and Albert Fishlow evaluate the South Korean and the Latin American experience, respectively, in their essential complexity. Mrinal Datta-Chaudhuri draws upon a comparative study of the Indian and East Asian cases to bring out the contradictions and complementaries in the relationship between the state and the economy. Anne Krueger's paper reflects on how the comparative advantages and disadvantages of state action flow from its organizational and incentive characteristics.

The Separation of Powers

2018 ◽  
Author(s):  
N. W. Barber
Keyword(s):  
Common Good ◽  
Separation Of Powers ◽  
The State ◽  
Institutional Framework ◽  
State Institutions ◽  
State Action ◽  
The Common Good ◽  
The Common ◽  
Single State

The point of the separation of powers is examined, and it is argued that accounts of the principle that identify liberty as the guiding purpose of the principle are flawed, the products of an unattractive account of the state. A richer understanding of the state produces a richer understanding of the principle. The second and third parts of the chapter outline such an account, reflecting on the institutional framework required by the separation of powers: the divisions and connections that the principle demands. Different state institutions are well-placed to identify different aspects of the common good and, through their differing skills and instruments, well-suited to modify the policies of the state in light of these assessments. The constitution then combines these decisions into a single state action. The chapter then considers apparent exceptions to the separation of powers.

scholarly journals Identidad territorial, agro y políticas públicas. Reflexiones históricas sobre las desigualdades regionales en la Argentina hasta mediados del siglo XX

2019 ◽  
pp. 7-18
Author(s):  
Noemí María Girbal-Blacha
Keyword(s):  
Twentieth Century ◽  
National Identity ◽  
Public Policies ◽  
The State ◽  
Historical Research ◽  
State Action ◽  
Identidad Nacional ◽  
Regional Inequalities ◽  
Territorial Organization ◽  
Siglo Xx

Este estudio histórico se propone abordar -en el escenario de la Argentina Moderna y hasta mediados del siglo XX- las característi-cas de la organización del territorio en tanto parte de la identidad nacional, la acción del Estado y su burocracia técnica, así como el alcance de las políticas públicas agrarias, conceptualmente defi-nidas. El objetivo es dar cuenta de los desequilibrios regionales, en un país que concentra alrededor de las tres cuartas partes de su población, su infraestructura y su producción agraria y agroin-dustrial en una cuarta parte del territorio. Una situación que logra trascender los cambios políticos y gubernamentales ocurridos. Conocer sus causas y consecuencias es parte del desafío que se emprende en estas páginas. This historical research intends to tackle – in Modern Argentina and until the mid-twentieth century - the characteristics of the territorial organization as part of the national identity, the State action and its technical bureaucracy together with the scope of the agrarian public policies, conceptually identified. The aim is to show the regional inequalities in a country that concentrates about three-quarters of its population, its infrastructure and its agrarian production and agro-industrial in one quarter of the territory. A situtation that moves beyond political and governmental changes. One of the challenges of these pages is to know the causes and consequences.

Beyond the Great Divide: globalization and the theory of international relations

1998 ◽  
Vol 24 (4) ◽  
pp. 479-498 ◽  
Author(s):  
IAN CLARK
Keyword(s):  
International Relations ◽  
Analytical Model ◽  
External Environment ◽  
International Relations Theory ◽  
The State ◽  
Middle Ground ◽  
State Action ◽  
Theoretical Scheme ◽  
General Significance ◽  
External Forces

This article assesses the general significance for International Relations theory of the literature on globalization. It argues that globalization is a pervasively unsettling process which needs to be explained not only as an issue in its own right but for the insight which it affords into cognate areas of theory. In short, it advances an analytical model whereby globalization itself can be understood and utilizes this as a theoretical scheme that may be applied more generally. The predominant conceptualization of the globalization issue within International Relations has been the debate between the proponents of state redundancy and the champions of continuing state potency. In turn, these arguments rest upon an image of state capacities being eroded by external forces, or alternatively of external forces being generated by state action. In either case, there is the assumed duality of the state(s) set off from, and ranged against, a seemingly external environment. Instead, this article argues that the state occupies a middle ground between the internal and external and is itself both shaped by and formative of the process of globalization.

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