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Vanderbilt Law Review

Authors

Thomas R. McCoy

First Page

785

Abstract

The purpose of this Article has been to reestablish the continued vitality of the several branches of the state action doctrine in the face of recent decisions that have strained noticeably to avoid implementation of one or more elements of the doctrine, often by an illogical insistence on the application of the Jackson nexus requirement. At least in the employment discharge cases, the regular findings of no state action should not be read as casting doubt upon the continued viability of the various elements of state action doctrine, much less as indications that all elements except state-action-by-state-regulation are so obviously defunct that they legitimately can be ignored. Nor should those cases be read as establishing a theoretically unsound distinction that would confine the various elements of the state action doctrine to cases alleging racial discrimination, thus leaving first amendment claimants such as those in Marsh substantially without protection. Rather, those cases should be read as instances of increasing judicial sophistication, albeit intuitive or instinctive, in the assessment of state action claims. They should be read as a rejection by the courts of the superficial assumption that if a private institution acts as the state with respect to one group of individuals in one context, it acts as the state with respect to all individuals in all contexts.

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