Reitman v Mulkey and 'State Action'

Edward Still still at votelaw.com
Fri Nov 4 08:22:19 PST 2005


Prof. Tushnet,

OK.  Let's change step 2 of my formulation to: D answers that it has 
no duty under state law.  That would cover both (a) the lack of a 
state law or common law imposing a duty and (b) the justification of 
a state warrant, deed, statutory or common law defense.

That puts Luther v. Borden and Martin v. Hunter's Lessee as type 
2(b), and Reitman v Mulkey as type 2(a).  I think that shows even 
more clearly that Reitman involves the absence of state law.  Of 
course, I realize that the reason for the absence was the passage of 
the proposition, but the question still remains, why describe the 
landlord as a "state actor" when he relies on a defense of "I don't 
owe you a duty" [meaning under Hohfeld's typology, P has no "right"]?

While I was composing this reply, Prof. Maltz's comment arrived.  I 
will go back and throw Shelley v. Kramer into my mix when I have a chance.

Ed Still

At 08:58 AM 11/4/2005, Mark Tushnet wrote:
>The problem in Reitman is that, in your formulation, when P
>(potential buyer/tenant) sues D (seller/landlord) for refusing to
>sell/rent because of P's race, D's response is not that state law
>gives me a justification, but that there is no duty under state law
>to sell/lease on non-discriminatory terms.
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>I'm trying to figure our why Reitman v. Mulkey (and the cases that
>rely on it) are lumped in with the State Action cases.
>
>It seems to me that this follows a usual pattern: P says D violated a
>duty owed to me (or committed a tort); D pleads justification because
>of a state law; P says your state law is unconstitutional.  We see
>the same pattern in Luther v. Borden where the tort was trespass, the
>justification was a warrant, and the gotcha was the alleged
>illegality of the government issuing the warrant.  Also, the same
>pattern in Martin v. Hunter's Lessee, where the fictitious Lessee
>claims ejectment by Martin, Martin says I've got a deed from
>Virginia, and the Lessee rejoins that the deed is invalid under the
>Treaty of Paris.
>
>We did not talk about "State Actors" in those cases.  I understand
>that State Action is an important concept in 14th Amendment
>jurisprudence, but I just don't see it being very relevant to the 
>Reitman case.
>
>Anybody want to take a little time off the Perils of Alito to talk about this?
>
>Ed Still
>
>
>
>Edward Still
>attorney and mediator
>Suite 201
>2112 11th Ave S.
>Birmingham AL 35205
>    phone 205-320-2882
>    fax toll free 1-877-264-5513
>    still at votelaw.com
>   http://www.votelaw.com
>   http://www.votelaw.com/blog
>
>
>--=====================_355224015==.ALT
>Content-Type: text/html; charset="us-ascii"
>
>I'm trying to figure our why Reitman v. Mulkey (and the cases that 
>rely on it) are lumped in with the State Action cases.
>
>It seems to me that this follows a usual pattern: P says D violated 
>a duty owed to me (or committed a tort); D pleads justification 
>because of a state law; P says your state law is 
>unconstitutional.  We see the same pattern in Luther v. Borden where 
>the tort was trespass, the justification was a warrant, and the 
>gotcha was the alleged illegality of the government issuing the 
>warrant.  Also, the same pattern in Martin v. Hunter's Lessee, where 
>the fictitious Lessee claims ejectment by Martin, Martin says I've 
>got a deed from Virginia, and the Lessee rejoins that the deed is 
>invalid under the Treaty of Paris.
>
>We did not talk about "State Actors" in those cases.  I understand 
>that State Action is an important concept in 14th Amendment 
>jurisprudence, but I just don't see it being very relevant to the Reitman case.
>
>Anybody want to take a little time off the Perils of Alito to talk about this?
>
>Ed Still
>
>
>Edward Still
>attorney and mediator
>Suite 201
>2112 11th Ave S.
>Birmingham AL 35205
>   phone 205-320-2882
>   fax toll free 1-877-264-5513
>   still at votelaw.com
>   http://www.votelaw.com
>   http://www.votelaw.com/blog
>
>
>--=====================_355224015==.ALT--
>
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