The “Traditional State Function” Doctrine: A Comparative Institutional Perspective
Abstract: Under the “traditional state function” doctrine, an entity is a “state actor” and thus subject to liability for constitutional violations if it performs a function traditionally performed by the government. Although much constitutional precedent endorses the doctrine, its purposes are rarely explored. Edgar infers from courts’ and commentators’ statements that the doctrine has three goals: ensuring that the public has access to goods and services it considers essential, preventing people’s expectations concerning how certain service providers will behave from being frustrated, and preventing firms with market power from harming consumers. Edgar further argues, based on the framework for comparative institutional analysis developed by Neil K. Komesar, that legislatures rather than courts are best suited to make legal rules to serve these goals, and hence that the doctrine should be abandoned.
