Chicago Journal of International Law


Consider the following cases: (1) A man employed by a private college informs his employer (in response to an inquiry) that he is gay. The employer fires him. The former employee sues the college, claiming that the college's action violates the nation's constitutional requirement that everyone be treated equally. (2) A hearing- impaired person seeks medical care from a hospital, which indicates its willingness to provide the care on the condition that the patient provide, and pay for, a sign-language interpreter to assist in the delivery of the medical care. The patient sues the hospital, claiming that its refusal to provide service violates the constitutional norm of equality. (3) A group of farm workers organizes itself and approaches the workers' employer, seeking to bargain collectively over wages, hours, and conditions of labor. The employer refuses to bargain. The union sues the employer, claiming that the refusal to bargain violates the workers' constitutionally protected right of association. In each of these cases, the plaintiffs seek to invoke constitutional norms against a non-governmental actor. Constitutional systems address their ability to do so through the doctrines of state action or horizontal effect: The plaintiff loses if the defendant is not a "state actor," or if the constitutional system does not give constitutional guarantees direct horizontal effect. Another way of describing the cases is this: In each the defendant has acted in a manner authorized by background rules of property and contract, rules which have not been modified by legislation applicable to the action the defendant took. The college relies on the employment-at-will doctrine; the hospital and the farm owner rely on the rule of contract law that no one is required to make a contract on terms other than those to which he or she agrees. The plaintiffs claim is therefore that the nation's constitution necessarily alters those background rules. The state action/horizontal effect doctrine identifies the circumstances under which such claims are legally valid. [CONT]