Back to the Briarpatch: An Argument in Favor of Constitutional Meta-Analysis in State Action Determinations

Brer Rabbit, after claiming repeatedly that he would prefer almost anything to being thrown into the briarpatch, expressed glee once tossed there. In fact, Brer Rabbit wanted to be in the briarpatch because, like most rabbits, he could navigate the briarpatch with relative ease: the briarpatch was home.

Over the course of a century, the Supreme Court has developed a great degree of familiarity with the state action doctrine, a doctrinal briar patch. Like Brer Rabbit, the Court has disclaimed repeatedly any interest in being there.

In this article, I argue that the existing tests for establishing the presence of state action are helpful in framing the state action question, but, as applied by the federal courts, they have all too often frustrated meaningful inquiry into the true relationship between ostensibly private actors and the federal or a state government. Wholesale abandonment of the tests, however, will not resolve this problem. Instead, courts conducting state action analyses must go beyond the mechanical application of the traditional tests to determine if, in the totality of the circumstances, a particular private entity is a state actor. Essentially, I advocate a constitutional “meta-analysis” that would improve the accuracy and fairness of state action determinations.