Litigating the State Action Issue in Peremptory Challenge Cases

Abstract

This Article suggests that if state action has been a conceptual disaster area, this condition can be improved by a rigorous application of common sense. The courts should find what is misleadingly called "state action" when, and only when, the state can properly be said to bear responsibility, of the right kind and degree, for the under- lying act, condition, or event complained of by the plaintiff. To greatly oversimplify, there is state action where there is state responsibility. The novelty of this approach does not lie in the mere reference to the idea of governmental responsibility. The cases refer to the idea of responsibility with some frequency, as do some commentators. While it has occasionally been explicitly denied that state responsibility is central to "state action," the cases and the academic literature more often sim- ply refer to the idea of state responsibility generally without developing the idea at all. It should not be surprising, therefore, that the inquiry remains a conceptual disaster area.