Tuesday, September 23, 2008

Miller on White Cartels, the Civil Rights Act of 1866, and the History of Jones v. Alfred H. Mayer Co.

White Cartels, the Civil Rights Act of 1866, and the History of Jones v. Alfred H. Mayer Co. is a new article by Darrell A. H. Miller, University of Cincinnati College of Law. It is forthcoming in the Fordham Law Review. The paper is not posted, just the the abstract:
In 2008, Jones v. Alfred H. Mayer Co. turns forty. In Jones, the Supreme Court held for he first time that Congress may use the Thirteenth Amendment, which abolished slavery, to prohibit private racial discrimination in the sale of property.
Jones temporarily awoke the Thirteenth Amendment and its enforcement legislation – the Civil Rights Act of 1866 – from a century-long slumber. Moreover, it recognized an economic reality: racial discrimination by private actors can be as debilitating as racial discrimination by public actors. In doing so, Jones veered away from three decades of civil rights doctrine: a doctrine that had focused primarily on the Fourteenth, rather than the Thirteenth Amendment, and on public actors, rather than on private actors. Further, by applying the Civil Rights Act of 1866 to private discrimination, Jones acknowledged the nineteenth-century roots of economic arguments that scholars use today to critique the relationship between private and public power.
Yet, despite its importance, Jones largely has been relegated to a squib in textbooks. Few scholars have attempted to analyze Jones in light of other, analogous types of discriminatory behavior by private groups – especially cartel behavior. And, unlike more famous civil rights cases, like Brown v. Board of Education, almost nothing is written about the people of Jones – the litigants, the lawyers, and the judges behind the caption.
This piece addresses that neglect. First, it ties together economic theories about racial discrimination with the history of the Civil Rights Act of 1866 and its subsequent interpretation in Jones. It explains how Congress’ exercise of Thirteenth Amendment power to govern private economic relationships during Reconstruction gave important, but unacknowledged, intellectual credence to the antitrust movements of the late nineteenth and early twentieth centuries. Second, it explores the human story behind Jones, tracking the narrative of the Joneses, their counsel, the judges, and their lives after the decision. Finally, it explains how Jones’ recognition of the interrelationship between public and private coercion can help scholars, lawmakers, and jurists define the contours of Thirteenth Amendment power.

1 comment:

Darrell said...

The paper is now posted and available on SSRN.

Darrell A. H. Miller