On Doctrinal Confusion: The Case of the State Action Doctrine
55 Pages Posted: 24 Mar 2017
Date Written: September 1, 2016
In this Article, I use a case study of the Fourteenth Amendment’s state action doctrine as a vehicle to consider, and partially defend, the phenomenon of persistent doctrinal confusion in constitutional law. Certain areas of constitutional law are messy. Precedents seem to contradict one another; the relevant tests are difficult to apply to new facts and new issues; the principles that underlie the doctrine are difficult to discern. They may become a “conceptual disaster area,” as Charles Black once described the state action doctrine. By examining the evolution of the state action doctrine, this notoriously murky field of constitutional law, I seek to better understand doctrinal confusion, to examine why it often occurs and why it sometimes persists, and to argue that under certain circumstances doctrinal confusion may actually be a good thing.
Keywords: state action, doctrinal confusion, legal history, Fourteenth Amendment, doctrine
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