Also known as: public powers · state power · governmental authority
Written by attorneys · grounded in primary & secondary sources — see below
Authority vested in governmental officials or entities to make decisions or take actions that affect private parties or the public at large. This authority includes the capacity to allocate public resources, issue permits, or enforce regulations in ways that bind or disadvantage individuals.
After leaving her post at a federal agency, a lawyer possesses nonpublic test results about a company's product obtained during her government service. She agrees to represent a competitor suing that company and plans to use the data to frame discovery requests. The rule bars the representation because the information qualifies as confidential government information acquired through public power and could materially disadvantage the company.
A city uses eminent domain to acquire homes in a neighborhood and transfers the parcels to a private developer for an office complex. Homeowners challenge the action as exceeding legitimate public power. The Court upholds the taking because the city's exercise of eminent domain authority serves a public purpose even though the ultimate title passes to private hands.
Select any source to read its text and confirm it supports the definition.
Homeowners sue to enforce a private agreement barring sale of property to buyers of a particular race. The state supreme court orders specific performance of the covenant. The Supreme Court reverses because judicial enforcement of the covenant constitutes state action that deploys public power to perpetuate racial discrimination.
A statute limits the amount of soft money that political parties may raise and spend. Parties challenge the limits as infringing First Amendment rights. The Court sustains the restrictions because Congress may exercise its public power to prevent corruption and the appearance of corruption in federal elections.
A state board of education requires public school students to salute the flag and recite the pledge each day. Students who refuse on religious grounds face expulsion. The Court holds that the board's exercise of public power to compel the salute violates the students' First Amendment rights.
Federal narcotics agents enter a private apartment without a warrant and search for evidence of drug activity. The occupant later sues the agents for damages arising from the unconstitutional entry. The Court recognizes an implied cause of action against federal officers who exceed the limits of their public power by violating Fourth Amendment rights.
Misuse occurs when a public official agrees with a private party to leverage governmental authority, such as grants or permits, to favor one private actor and restrict opportunities for others. The agreement need not violate a criminal statute. An objective contrary to public welfare satisfies the unlawful-object element. Courts deny dismissal when the complaint alleges coordinated distortion of public resources for private gain.
Supporting sources
Disqualification is required when the lawyer possesses information obtained under governmental authority that remains nonpublic and could be used to the material disadvantage of the person to whom it relates. Subsequent public disclosures do not remove the prohibition if the lawyer retains unreleased details. The lawyer's firm may continue only with timely screening and no fee apportionment to the disqualified lawyer.
Supporting sources
Yes. When a state court orders specific performance of a racially restrictive covenant, it deploys the state's public power to enforce private discrimination. Such judicial action violates the Equal Protection Clause even though the covenant itself is a private agreement.
Supporting sources
…common law only, though supplemented by statute. See, e. g., Alabama Code, Tit. 7, §§ 908-917. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised. See Ex parte Virginia, 100 U. S. 339, 346-347; American Federation of Labor v. Swing, 312 U. S.…