A Conceptual Disaster Zone Indeed: The Incoherence of the State and the Need for State Action Doctrine(s)

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The state action doctrine is famously a disaster zone. In this paper, I argue that the confusion surrounding the doctrine has an unexpected source: the concept of the state itself. As employed by scholars, courts, and ordinary citizens, the concept is incoherent. Our core intuitions about the fundamental nature of the state are in conflict. The appropriate response to this discovery might seem to be that defended by several recent authors: give up on the doctrine altogether. Contra critics, however, I maintain the opposite. Recognizing this incoherence permits us to rescue the doctrine. Our interest in the state reveals itself as an interest in several different clusters of features, each of which prove independently coherent and morally significant. This suggests a new way of saving the doctrine. Rather than attempting to save the state action doctrine, we need to develop a pluralistic set of state action doctrines.

First articulated in the Civil Rights cases, the state action doctrine holds that Congress' article five enforcement powers extend only to state actors. The fourteenth amendment does not regulate private entities. For decades, courts and legal scholars have struggled to make sense of the case law and the purpose behind the doctrines' distinctions. Critics have denounced the doctrine as unworkable, normatively useless, and decried its distinctions as analytically incoherent. In the paper, I seek the source of the doctrine's challenges. The problem, I show, is that our deeply held intuitions about the state are themselves incompatible. We simultaneously think of the state as an organization, as a role, and as a particular set of offices. Each of these referents is individually intelligible. Collectively, however, they are problematic. The features necessary to qualify as part of the state under one description are incompatible with those required to do so under another. Considering the state as an organization directs us to the characteristics traditionally associated with entanglement tests; addressing the state as the set of entities who govern points us to those traits long identified with the public function test; attending to the state as office correlates to the traditional state actor test. These propositions do not- and realistically cannot- describe the same subjects. This conceptual incoherence explains courts' inability to develop a unified, functional, and purposeful doctrine.

Nonetheless, I contend, we have reason to hold on to the doctrine's underlying intuition that state and non-state actors should be held to different standards. Each of our ways of thinking about the state, I show, point to morally significant characteristics. We have reason to hold agents of the same organization to different standards than we hold non-agents, we have reason to require different things of those who govern than those who do not, and we have reason to hold traditional office-holders to account in ways that we do not hold those who occupy other positions. The inconsistency of the state action doctrine is thus not a failure. Rather than being jurisprudential, the source of our problem lies in our assumption that these divergent tests ought to be unified into a single doctrine. They should not. Rather than trying to muddle our way to a single state action doctrine, we should work to develop different doctrines, attuned to the distinct reasons we have to hold different type of actors to divergent standards. 

Enough About Marriage Already: A New Framework for Public Policy Scholarship

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Should states recognize same-sex marriage? Polygamous marriage? Should marriage be incentivized? Should it be given tax benefits or penalties? For the past decade scholars across the political spectrum have disagreed about the answer to questions like these, but they have agreed about one thing: determining what form marriage should take is an important question that deserves to be the focus of serious scholarly and public attention. In this paper, I argue that this presumption is a dangerous mistake. In focusing on what they should do about marriage, scholars, policy experts and elected officials have been asking the wrong question. By doing so, they risk perpetuating the very injustices they seek to resolve. These findings are significant for two reasons. First, they tell us something important about the about the policies states should pursue and scholars should investigate. Even more fundamentally, they tell us something important about legal scholars should approach their efforts to guide public policy.

To demonstrate this, I focus in the paper on one of the most sophisticated recent works of scholarship on marriage, Elizabeth Brake's defense of a novel policy she calls minimal marriage. Though her work is rigorous, I demonstrate that Brake reaches conclusions inconsistent with the values that motivate her policy conclusions. Rather than promoting a just distribution of the values she sees caring relationships embodying, marriage promotion, even in the revised form Brake defends, does harm to the most vulnerable - the very people she aims to protect. To solve the problems she describes, I show, Brake would do better to focus on housing policy, mobility policy, and a range of other concerns.

Of greatest interest is the reason why Brake's argument went array. It did so, I show, because Brake adopted what I call the tethered approach, beginning her investigation by focusing on a particular real world policy concern, marriage policy. Framing her research in this manner shaped Brake's perceptions in ways that left her predictably vulnerable to cognitive error. To avoid these errors, I suggest an alternative methodological framework, what I call the open approach. Rather than beginning with a tangible policy concern, this method starts with an initial focus on abstract theorizing, asking “what are the nature of the values a that public policies should support?” Rather than immediately moving to consider a particular good, this method then seeks to describe abstractly what must be done in order to respond appropriately to the relevant values. It is only in the third step that researchers become more concrete, using empirical tools ro investigate what policies possess the characteristics the earlier steps abstractly described. As in all policy work, the aim is ultimately to provide concrete actionable guidance, but a scholar who employs the open approach does not try to get there by beginning with a concrete policy concern in mind. On this approach, the determination of what constitutes a relevant concrete policy concern is itself part of the subject of investigation. Like all ways of framing our thinking, the open approach influences our perceptions. However, unlike the tethered approach, I show that employing an open method focuses scholars' attention in a way that helps them reach accurate conclusions. By employing this approach, policy scholars will be better equipped to provide policymakers with much needed guidance. 

In recent years, discussions of justice have taken a turn for the global. Liberal political philosophy has been racked by debates about the scope of distributive duties, with statists arguing that principles of distributive justice are relevant only in the domestic context, and cosmopolitans contending that they apply without regard for borders. In contrast, the domestic realm has seemed a site of relative détente. For all their differences, statists and cosmopolitans alike share the conviction that lawmakers have obligations of socioeconomic justice to the citizens they govern. In this paper, I dispute this narrative. The apparent harmony of domestic justice, I show, is an illusion made possible by a confused vision of the regulatory process. When we consider how governance actually happens, theories of domestic justice prove every bit as controversial as discussions of global justice.

To demonstrate this, I focus on one prominent view thought to have statist implications, the coercion theory, whose advocates contend that the fact that the state is uniquely coercive in the realm of private law- most specifically property- gives rise to distinct distributive obligations. This view, I show, can overcome the criticisms of cosmopolitan opponents. But it falters from an unexpected direction- the domestic context. As I show, the coercion theory can survive cosmopolitan critics only because both proponents and opponents of the view accept a confused vision of the regulatory state, one that ignores the disarticulated fashion in which policy is made and enforced. When the coercion principle is applied to a more realistic account of the regulatory process, the view entails a surprising conclusion: principles of distributive justice apply to neither the international nor the domestic realm. Proponents can avoid this conclusion only by revising the view in a way that leaves them vulnerable to the criticisms they have leveled against cosmopolitans.

This approach, I argue, underscores the need for legal scholars to develop a new model of the state. Doing so, I contend calls into question many implicit assumptions that underlie elements of legal doctrine. Aspects of business and administrative law, for example, are predicated upon the notion that private actors like corporations and standard setting organizations occupy a distinctly different role than traditional state actors. As I show, their shared normative vulnerability to special distributive demands suggests this is not the case. 

The Uneasy Status of Statism

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