On Doctrinal Confusion: The Case of the State Action Doctrine

IntroductionIn his 1967 Harvard Law Review Foreword, Charles L. Black pronounced the Fourteenth Amendment's state action doctrine to be a "conceptual disaster area."1 In his assessment of this particular area of constitutional law, Black was hardly alone. Scholars over the years have approvingly recycled Black's nice turn of phrase2 or they have exhausted their thesauruses searching for evocative formulations to reiterate his basic point. The state action doctrine has been labeled "a murky borderland of law,"3 "a self-contradictory invention,"4 "a continuing doctrinal anachronism."5 The judiciary has been equally critical, if somewhat less poetic, in their assessments. Judges preface discussion of the doctrine with an obligatory lamentation: "We now turn to the obdurate question of state action";6 "We are required in this appeal to plunge once again into the murky waters of the state action doctrine";7 "This appeal requires us to [engage] one of the more slippery and troublesome areas of civil rights litigation."8 The Supreme Court has generally favored understatement. "Unfortunately, our cases deciding when private action might be deemed that of the state have not been a model of consistency," Justice Sandra Day O'Connor once noted before plunging into the murk.9The only thing that is clear when it comes to the state action doctrine is that the doctrine is a mess. Everyone, it seems, agrees that the doctrine is unclear; it is contradictory and inconsistent; it lacks conceptual coherence.10Typically, at this point my role as a legal scholar would compel me to reveal a path forward. i would formulate a more coherent and reasoned state action doctrine. i would provide a relief plan for the legal disaster area. Contradictory, unclear, incoherent doctrine is a problem to be fixed, and one of the central roles of legal scholarship is to fix these kinds of problems. in this Article, however, my agenda runs in a different direction. Rather than offer a remedy for this supposed constitutional ailment, i seek to better understand it and to examine why doctrinal disaster areas often form and why they sometimes persist. i also argue that scholars tend to exaggerate the problematic nature of doctrinal confusion, a point that becomes clear when we abandon narrow court-centered conceptions of constitutional development for a more institutionally pluralistic conception. Legal doctrine is but one component of a socio-legal system in which the people, their elected representatives, and judges define and contest constitutional norms.11 From this perspective, whether doctrine achieves a satisfying coherence may be less important than other vital roles doctrine plays in constitutional development, particularly when courts engage in constitutional dialogue with nonjudicial actors. This point illuminates a potential line of division between the work of scholars and that of lawyers engaged in constitutional litigation. What scholars lament as a failure of principled reasoning or legal craft may create valuable opportunities for those who seek to use the law to effect social change. Confused doctrine may even help the courts serve a productive role in the dialectic of constitutional development. Those outside the academy who struggle to advance alternative claims on the meaning of the Constitution have often recognized this. In this Article, I urge scholars to do the same.One of the central challenges for an inquiry into doctrinal confusion is that the phenomenon resists easy identification. Although certain criteria commonly associated with doctrinal confusion, such as indeterminacy or complexity, might be susceptible to quantification, other essential elements are not. There is an unavoidable we-know-it-when-we-see-it12 quality to my subject: widespread perception creates and populates the category without stopping to define it. To navigate these difficulties, I choose to employ what I term an illustrative case study approach to doctrinal confusion. …