E. Garrett West (Yale Law School), A Functional Theory of State Action, 121 Nw. U. L. Rev. (forthcoming 2026) on SSRN. Here is the abstract:
Scholars have long dismissed the “state-action doctrine” as incoherent, insisting that there is no principled way to distinguish between the state and private parties when private power is backed by law. But the search for coherence is a mistake. The state-action doctrine is a functional tool to manage the interaction between constitutional and subconstitutional law. First, the doctrine prevents displacement of subconstitutional legal regimes (e.g., employment law, the Uniform Commercial Code, or public-utilities regulation) better targeted to the regulatory problems those regimes address, while still permitting courts to constitutionalize discrete domains like policing and incarceration. Second, the doctrine makes constitutional adjudication manageable by channeling constitutional claims through subconstitutional regimes. That functional theory also suggests that constitutional law operates as a substitute for or complement to subconstitutional regimes. Accordingly, determining whether to deploy constitutional law requires a theory about the joint aims of a legal system containing both constitutional and subconstitutional modules, which suggests that constitutional interpretation must integrate theories about the other legal regimes that it sometimes preserves and sometimes displaces. Finally, the functional theory offers a framework to understand some pressing constitutional issues, including the First Amendment’s application to social media platforms, the Second Amendment’s application to firearms on private property, and the Due Process Clause’s application to private arbitration.
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