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Book Review
James W. Ely, Jr., Railroads and American Law, Lawrence: University Press of Kansas, 2001. Pp. 365. $39.95 (ISBN 0-7006-1144-4).
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Railroads burst onto the scene in the 1830s and from the first locomotion began to change American law in sometimes subtle and sometimes dramatic ways. These newfangled corporations shifted common law doctrine, sparked legislation, laid down whole new areas of law practice, and occupied legal and political discourse in the nineteenth and early twentieth centuries. The railroad found itself before the Supreme Court on almost all of the major issues of American history from eminent domain to civil rights, from segregation to regulation, from anti-trust to federalism. James W. Ely's Railroads and American Law delivers an excellent comprehensive synthesis of the literature on the subject. |
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Ely seems determined to restore a more balanced approach to our understanding of the way the law worked with railroad corporations, and this tack, while healthy, follows his earlier work on the period aimed at a generation of scholarship in the 1960s and 1970s. He revisits the arguments of Gabriel Kolko, Morton Horwitz, and Ronald Lewis, offering objections and corrections to their works. He admits that he offers no "grand theory" and is "reluctant to impose a thesis" (viii) on the history of American railroad law. But he does offer criticism for those historians who he thinks have gone too far—those who have emphasized that railroads took over the regulatory arena, that railroads benefited from a "subsidy" in the way tort law operated in their favor, and that the Supreme Court lined up squarely behind the big railroad interests in case after case. Instead, Ely argues, nineteenth-century jurists and legislators "always understood that individuals and the public had rights important to safeguard" (283). |
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His chief argument is with Morton Horwitz's The Transformation of American Law, namely Horwitz's thesis that judges controlled and shaped the law to suit corporate interests, tilting the balance in favor of the railroads throughout the period. Ely asserts that legislators, not judges, were in the engineer's seat driving American railroad law. His analysis and material focus mainly, if not entirely, however, on the court decisions and the work of judges. If the work of legislators was crucial to the development of railroad law, we need to know more about the connection than Ely offers. Politics, lobbying, and the legislative process are subjects that deserve a look if the argument is that they were more important than what was happening in the courts. In his introductory paragraphs Ely sets out to focus on "legal culture," which he suggests includes more than laws and courts. Railroads and American Law, though, is mostly a compilation of appellate court decisions recounted and interpreted (no court docket studies are cited for example). The informal legal process of settlements, arbitrations, and private contracts, for example, has interested legal scholars recently and for good reason. In these areas we might explore what defined legal culture and how it shaped Americans' experience with the law and the railroads far beyond the courtroom or the legislative halls. |
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When assessing the Progressives and their regulatory measures, Ely dismisses them as "disastrous" (282) and a "failure" (239). On this topic Ely takes aim at Gabriel Kolko's provocative thesis in Railroads and Regulation that the railroads sought federal regulation and were the primary beneficiaries of it. The debate is an old one, and probably a stale one. But Ely makes it seem vital and brings energy to it that might revive scholars' interest in the subject. When scholars examine Progressive reforms and the law, they will surely want to understand not only whether reforms were effective or successful but also what the social and political context for these reforms was and how railroads found themselves challenged by them. |
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Ely's correction of Kolko's and Horwitz's theses may come at the expense of seeing that railroad corporations did accrue significant benefits before the law, that their monopolistic tendencies were especially threatening in the marketplace, and that they went to great lengths to assert and protect their legal advantages. Even the railroads admitted this much privately. Ely's focus on singular cases and on the whole sweep of railroad legal history tends to obscure the view from the heights of railroad power where the confrontations were not abstract and theoretical. Even though railroad corporations did lose some fights in court and in Congress and the state legislatures, and even though in the twentieth century other modes of transportation eclipsed them, railroads were so busy in the courtrooms across America for a reason. |
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The book is organized by subject but the chapters vary in length widely. The longest chapters, not surprisingly, deal with such well-traveled topics as regulation, personal injury, and the emergence of the railroad. One of the most fascinating (and shortest) chapters, "Arteries of Commerce," offers compelling analysis on fresh topics—the conflict over bridging navigable waters, the dormant commerce power and federal-state powers, and the role of Congress in interstate commerce legislation. Ely delves into several other excellent topics, such as the conflicts between Indians and the railroads in courts and the forfeiture of land grants. The book would have benefited from maps and charts, although the production costs are undoubtedly high. The railroad's course through the law often turned on where it ran and why, on how it was capitalized and extended, on competition and where it existed, and on what jurisdictions it ran through and who sat on the benches and in the legislatures. |
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William G. Thomas
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University of Virginia
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