Richard Frankel (Drexel University Earle Mack School of Law) has posted The Failure of Analogy in Conceptualizing Private Entity Liability Under Section 1983 (University of Missouri-Kansas City Law Review, Vol. 78, No. 4, 2010) on SSRN. Here is the abstract:
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This paper examines the liability rules that apply to the growing number of private entities that perform state functions and fall within the purview of Section 1983. In particular, this paper asserts that in Section 1983 cases, courts often determine the scope of private-entity liability by comparing private-entities to government actors, and that this act of comparison leads to poor results that impair victims of constitutional violations from vindicating their rights. Instead of focusing on comparison and analogy, this paper proposes that courts should recognize that private entities are their own separate category of defendants and should treat them as such. Rather than engaging in analogy, courts can utilize the huge body of law that already exists for determining the liability of private parties that commit injurious acts – tort law.
Follow the link for the full abstract.