Revue - Les Cahiers de l'Arbitrage N°1-2023 - 133

COMMENTAIRES DE JURISPRUDENCE
relations. 73
Similarly, the ability to prosecute and punish crimes is " [p]erhaps the
clearest example of traditional state authority. " 74
Most relevant, however, is United States caselaw tying the adjudication of
disputes with the power of the Sovereign. For instance, in Edmonson the Court
explained that juries (the factfinders in the American judicial system) " perform[ ]
the critical governmental functions of guarding the rights of litigants and ensur[ing]
continued acceptance of the laws by all of the people. " 75
(Internal quotation marks
omitted). Juries weigh evidence, judge the credibility of witnesses, and reach a
verdict. 76
are traditional functions of government, not of a select, private group. " 78
As the Court stated, " [t]hese
Thus,
though a jury is composed of private persons, it is " an entity that is a quintessential
governmental body, having no attributes of a private actor. " 79
Relatedly, United States courts have " consider[ed] private persons to be
government actors when they perform a function which is traditionally the exclusive
prerogative of the state. " 80
Among those prerogatives is the judicial function. Some
of the attributes of the judicial function were listed in Edmonson. Other courts have
made the connection clear. As the First Circuit explained, " [t]he bedrock judicial
function is, of course, the adjudication of disputes. Other traditional judicial functions
include such things as weighing evidence, making factual findings, reaching legal
determinations, choosing sanctions, and expounding reasons for [ ] decisions. " 81
(internal quotation marks omitted).
Further, United States courts have held that a private entity who performs a
judicial function acts in a " judicial or quasi-judicial capacity. " 82
That is important
because the due process clause of the Fourteenth Amendment of the United States
Constitution provides that " [n]o State shall ... deprive any person of life, liberty,
or property, without due process of law. " 83
(Emphasis added). Accordingly, in
principle the Fourteenth Amendment's due process clause applies only to action
by U.S. states. 84
State action is present, however, when a private individual
73. See New Jersey v. New York, 523 U.S. 767, 793 (1998) (noting that the provision of police
and fire protection is a governmental responsibility); Kadic v. Karadzic, 70 F.3d 232, 244 (2d Cir.
1995) (discussing the definition of a state under international law); see also Restatement (Third) of
Foreign Relations Law § 201 (Am. Law Inst. 1987) ( " Under international law, a state is an entity that
has a defined territory and a permanent population, under the control of its own government, and
that engages in, or has the capacity to engage in, formal relations with other such entities. " ).
74. Bond v. United States, 572 U.S. 844, 858 (2014).
75. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 624-25 (1991) (internal quotation marks
omitted).
76. Id.
77. Id. at 625.
78. Id.
79. Id. at 624.
80. See Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 1288, 1310 (11th Cir. 2021).
81. Goldstein v. Galvin, 719 F.3d 16, 25 (1st Cir. 2013).
82. Harper v. Pro. Prob. Servs. Inc., 976 F.3d 1236, 1242 (11th Cir. 2020).
83. U.S. Const. amend. XIV, § 1.
84. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982) ( " Because the [Fourteenth]
Amendment is directed at the States, it can be violated only by conduct that may be fairly
characterized as 'state action.' " ); Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974) (discussing
" the essential dichotomy set forth in [the Fourteenth] Amendment between deprivation by the State,
subject to scrutiny under its provisions, and private conduct, 'however discriminatory or wrongful,'
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Jury verdicts are, as a general matter, final; they have preclusive effect
on later cases, and they are enforceable by courts. 77
Revue - Les Cahiers de l'Arbitrage N°1-2023

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