* We move on to state action material.

Incorporation means specifically should get the right guarantee in the

first amendment although our first as one to eight contains specific right guarantee. These are only guarantee
against the federal government. These rights are now up here, then incorporated into the liberty concept in the
due process clause, which is limitation upon the state prohibiting state from depriving person of right liberty to
property. So, using that due process, which is restriction prohibition upon the state, using it as a vehicle to carry
the specific rights guarantees that are meant to be used against the federal government. So, this process
incorporating specific right guarantees here and then making them available to be used against the state using
the due process clause, which is limitation upon the state government.

Okay, so there's processes called incorporation. And for that, once again, the due process clause Liberty idea is
used as a vehicle. Why do we need this? It's because these specific rights guarantees are for purposes of using
them against the federal government as the first amendment. Those Bill of Rights guarantees are initially and
still today, guarantees to be used against the federal government.

One question was all these specific rights guarantees to be incorporated. Some you have very important rights
such as right to liberty, right to freedom of speech. At the same time, in the fourth and fifth amendment, you
have a lot of all procedural rights pertaining to criminal defendants. Okay. All these rights supported what was
called a total incorporation. All here to be incorporated, to be used against the state. So that specific rights
guarantees, involving federal government, and specific rights guarantees involving the states and local
governments should be exactly the same. Justice Black concerned about judicial subjectivity, supported total
incorporation, everything here, nothing more, nothing less.

1. the state action doctrine is about separation of powers concerning. The state action rule and reading from that
article draws additional support from American separation of powers sensibilities, which points towards letting
legislatures, not courts decide how far non state parties that is, private parties should be required by law to
respect the values and interests that animate the Bill of Rights. When it comes to the bill of rights that specific
rights guarantee, it should be up to the lawmakers rather than the courts. So, when there is no government action
involved, the court should tell the litigants don't come to the court to protect your rights, try to work through the
political process. It's a separation of powers concerns. Okay, by requiring the challenger who there was
government action involved, right? That is a reflection of the separation of powers concern behind it. Okay,
instead of instead of coming into the courts, instead of asking the court to judicially protect the rights here, to
work with the lawmakers, if you want to protect your rights, okay, so that should be the way rather than coming
into court.

2. that there is a federalism concern as well. The second point that Michelmen makes here, within the American
scheme of federalism, the policy choices involved in fashioning such regulation, that is regulation of protecting
rights, regulating essentially private sector and regulating market affairs, to do that, first and foremost at all to
states, rather than Federal Congress, or Supreme Court. A federalism theme is manifest, for example, in the civil
rights cases of 1883. Civil rights cases can be seen as an illustration of the court's narrow interpretation of the
possible, putting the court in validating federal congressional efforts in the Civil Rights Act of 1865, to protect
newly freed African Americans from private discrimination. So Federal Congress tried to pass a statute, Civil
Rights Act of 1865, in order to protect recently freed African American slaves from private discrimination. But
that federal statutes of Rights Act of 1875 was struck down. The message there being that protection should be
left essentially up to the state government, rather than Federal Congress, and using for the statute, Supreme
Court doing the main work in protecting individuals from private discrimination.

3. one of the most essential features of American constitutionalism, the power of government must be limited.
when it comes to private action, when it comes to what happens in the market, for instance, it should be left up
to the private persons and the market to handle rather than the government taking charge. These ideas basically
government should be government or limited power. This doctrine is a very good illustration of the interrelated
nature. State Action requirement, of course, has huge implications on right protection. That's immediate aspects
of the picture.

what are the exceptions to the state action doctrine? So, state actions have to do with it is a requirement that in
order for someone to use constitutional rights guarantees, there must be government action. Action such as
Government passing a law or government official doing something that violates the rights or if it is not a
government official, and if it is a private actor, then there has to be very close nexus between the two. So, the
cases in this set basically illustrate what are those situations where the alleged the rights violation is done by a
private actor. But nonetheless, because of the nexus between the private actor and the government, the court
may find state action.

So, in that sense, these cases are in a sense, an exception, right. Alleged rights violation by private actor with
given the nexus between private actor and the government, the court may still find state action, which means the
constitutional protection they still apply. I basically divided this material into two sets. 1.traditional public
function approach 2. significant state involvement or Nexus approach. Our main case is Burton case.

1. what if there is some rights violation, for instance, someone who wants to engage in speech activity right to
free speech. But the company that runs the town says you cannot engage them speech. And that individual now
wants to challenge that preposition that violation of rights to free speech. That's the first amendment coupled
with 14 rights can be used against state and local government. The difficulty here is not incorporation, but the
private company. There's no state actors involved. So the question is, can the person whose rights to free speech
has been violated by a private company? Can that person still use the First Amendment free speech guarantee
coupled with the 14th amendment? The court say Yes, it’s private company. What was the function that private
company was performing? Running a town. Running a town is traditionally what government does. So that the
private actor does is essentially governmental in its function, then even private action can come under the state
action doctrine. So you may use the constitutional guarantees. If you apply the typical state action doctrine, law,
constitutional challenge, constitutional protections with freedom of speech cannot cover this type of action. But
because the nature of the function that his private company was performing in essentially governmental. this is
an exception to that general principle.

2. Kramer. when the court enforces this restrictive covenant, covenant itself doesn't mean much unless it is
enforced. If this restrictive covenant is enforced by a court, covenant itself entered into by private homeowners,
it's a private action. The court say Yes. This is the judicial enforcement exception. If the court gives the effect to
essentially a private action, but that private action engaging in racial discrimination, we could find state action.
That seems too broad. Why? Because then anytime the court makes judgment or decision about private action,
which is what courts do all the time. Too much of private action may come under state action. Then the line
between private action and government action would be blurred.
3. joint participation joint entanglement exception.

Here. What was the action allegedly violating constitutional rights protection the private restaurant that refuse to
serve minority customers. Mr. Burdon after an American after parking his car in the parking part of the building
day which is run by state agency. The whole building is owned and operated by a state actor. Okay. But some
space within that parking building is leased out to this private restaurant. And that private restaurant, it refuse to
serve to African American. In order to use the equal protection clause against the restaurant, there has to be state
election. Okay. The alleged discrimination is by the private restaurant. But in order to apply technical debt must
be state action. So you need to find this restaurant is not performing traditional gorvenmental function so that
exception can not be applied. There is no support to get involved.

So you need to need to see whether there is really a tight connection nexus between the two, the restaurant and
the government. And this is one of very few cases that very clearly illustrates how close a Nexus is required.
Okay. So essentially, what's the relationship between the state agency will be involved in conducting
government and the private actors restaurants? How close relationship between the two what's the basic
relationship between the two? Restaurant is the lessee and the government is lesson so landlord tenant
relationship is that sufficient? As long as there is lessor lessee landlord tenant relationship that's sufficient to find
the requisite Nexus therefore, any tenant who is a private sector, as long as a tenant of a government landlord,
then any action by that private lessee what counts as government action state action is that what the court says?
No far from it. Okay, mere landlord tenant for the lessor lessee relationship will do that's the point here. Okay.
What else? What additional factors that shows that indeed, the government private extra relation here is really
really close. So much so that when private actor restaurant discriminates against Mr. Burton, that is gain jointly
by the government. And one additional factor, some findings of fact by Delaware Supreme Court again in terms
of relationship between the private restaurant and the government. And on that basis, the Delaware Supreme
Court, no surprise, found no state action. And then the Supreme Court here says we cannot say that these factors
lead in his capability to the conclusion that there was no direction here. In addition to the findings of fact that
the state Supreme Court may, there are additional factors that show that the relationship between the private
actor here and the government much tighter here. The relationship here is sometimes called mutual benefit.
Government and private actor mutually helping each other out.

The Supreme Court has held that a private private sector may be held liable for a deprivation of constitutional
rights, meaning private actors action could be deemed state action. So an exception applies here. If two elements
are present. First, the deprivation, the action must be caused by the exercise or some right or privilege created
by the state or by a local government imposed by the state, by person for whom the state is responsible..

If there is a some state law or under some state authority, the alleged private actors rights violation was basically
authorized or encouraged. Right. So if there is a state law, for instance, and acting under that state law to the
private act right, doing something that allegedly now violates some constitutional right, then even though it is by
private actors, the very action at issue is under a state law based upon some right and privilege that the state law
grants then even though it is by private actor, that action may be deemed state action. So the action caused by
some exercise of right or privilege insanity created by government. So focusing more on the action
itself, whether it is because of some right or privilege granted authorized given under the
government.

Second element, the party, the second element focuses more on the actor rather than the action,
right. The party Charged with deprivation must be a person who may fail it said to be a state actor.
to determine whether private actors conduct is to be deemed state action, we asked two questions
the court says first whether the claim the constitutional deprivation that action resulted from the
exercise of a right or privilege having its source in state authority Second, whether the private
party and private actor charged with the deprivation of right could be described in all fairies is a
state actor. And one of the things to consider in determining whether the private actor is to be
fatally deemed a state actor The court says there are three principles, three kinds of situations
where a private actor could be deemed fairly as a state actor, so what are those three? Essentially,
he gives the court teams essentially first important situation. It is relevant to examine the following
the extent to which the private actor actually relies on government assistance and benefits. the
private actor evil restaurant relies so heavily on the benefits coming from and pulling from the
government. Okay. So that being basically the private actor, state, in all fairness, given a very tight
connection between the second principle whether the actor is performing a traditional
governmental function versus chambers. And third, whether the injury cause whether it be racial
discrimination or appropriate violation when the injury caused is aggravated in a unique way by the
incidence of governmental authority.

We move on to Equal protection of the law which is essentially about equality. 1 st material is about
race equality. constitutionally problematic government action here is essentially government
classifying people and treating them differently on the basis of something and that's depending on
that something, it could be constitutionally problematic. that government action classification on
the basis of race is subject to the most searching most demanding judicial scrutiny because such a
government action as a suspect. In other words, when whenever a government uses something
like race as a basis of classifying people, and then treating to two different classes of people
differently, that itself is suspect.

There is a different level of Judicial scrutiny. How strictly, how generously the Supreme Court would
review, government action at issue. The basis of classification is Race, the most demanding level of
strict scrutiny. Next level down, called Intermediate scrutiny, and there is something called rational
basis review, or mere rationality. when it comes to rational basis, the burden is on the challenger.
The challenger who alleges that the government has violated his right then challenger carries the
burden. But as we move up, both intermediate scrutiny and strict scrutiny, the burden is on the
government.

Why race subject is the must demanding constitutional test? Because race is something that you
do not choose. You do not determine your race. Sex is yet another immutable trait. Then Should
sex be subjected to the same most searching and demanding constitutional test? But, when it
comes to sex, men and women are different. There are differences
although there are a lot of the same use and similarities between men and women, but there are
indeed genuine differences between men and women. But race does not have genuine difference.