This paper examines the liability rules that apply to the growing number of private entities that perform state functions and fall within the purview of Section 1983. In particular, this paper asserts that in Section 1983 cases, courts often determine the scope of private-entity liability by comparing private-entities to government actors, and that this act of comparison leads to poor results that impair victims of constitutional violations from vindicating their rights. Instead of focusing on comparison and analogy, this paper proposes that courts should recognize that private entities are their own separate category of defendants and should treat them as such. Rather than engaging in analogy, courts can utilize the huge body of law that already exists for determining the liability of private parties that commit injurious acts – tort law.

First, I briefly describe the current approach to determining private-entity liability and explains how courts often rely on analogy as their interpretive method. Second, I examine three recent Supreme Court decisions in Section 1983 or Bivens cases – two involving private defendants and one involving governmental defendants – and shows how the Court’s focus on analogy in each case leads to unsound or misguided results. Third, I offer some hypotheses about why courts tend to use analogy in the private-entity context. Finally, I suggest that courts should limit their focus on analogy and offers an alternative framework for assessing private-entity liability.