Railroads and American Law (review)

Historians of American law have long understood that railroad technology and railroad enterprise consistently posed novel challenges for the American legal system. No force prompted more innovation in law during the nineteenth century than railroading, and while its prominence diminished thereafter, courts and legislatures of the twentieth century still found much of novelty to address in the industry. No historian, however, has previously documented the full measure of that influence in such comprehensive fashion as James W. Ely Jr. does in this book.

Ely's opening nine chapters present the full panoply of issues that courts and legislatures confronted during the nineteenth century: state and federal land grants; regulation of rates and safety; commerce clause rulings; obligations to passengers, shippers, and neighbors under liability laws and other doctrines; insolvency and receivership; property and taxation, including eminent domain and the law of nuisance; liability for personal injury; and a variety of social issues, such as racial segregation, gender distinctions, and Sunday operations. (One oversight, of special relevance to readers of this journal, is patent law.) These chapters are distinguished by their thoroughness, by their many references to cases and statutes at all levels, and by their clear exposition of complex principles. Together, they stand as the most exhaustive single-source compendium of prevailing legal doctrine regarding nineteenth-century railroading now in print.

The final quarter of the book carries the topic forward across the twentieth century. Here Ely adopts a more chronological approach, with chapters devoted to the Progressive Era, to World War I, and to legal problems associated with railroad decline thereafter. He also relies more heavily on the secondary literature, especially the work of Albro Martin and Maury Klein. Like these scholars, Ely stands in harsh judgment of the regulatory policies launched at the turn into the twentieth century. "Rather than a triumph of the Progressive Era," he concludes, "the waves of regulation put the industry in a straitjacket and ultimately proved disastrous" (p. 282).

Ely generally eschews such summary judgment in his treatment of the nineteenth century, preferring instead to emphasize how legislators and judges struggled to balance a variety of interests in each of the areas they tackled. In the end, however, he emerges as a staunch defender of the railroad perspective at virtually every turn. He consistently rationalizes rulings that critics of railroads (and many subsequent historians) found objectionable, and he minimizes the benefits railroads might have obtained through policies such as land grants, eminent domain procedures, limited liabilities for nuisances, receivership guidelines, restricted taxation, and liberal public finance. Above all, he wishes to dispel the argument advanced by many scholars that courts and judges of the nineteenth century provided railroads with safe haven from legislators and "devised legal rules. . . to subsidize economic growth at the expense of the weaker segments of society" (p. 283).

Not all historians will rush to embrace this corrective to what Ely characterizes as the "conventional" or "commonly held" view. No brief review can present the full range of potential arguments and dissect them adequately. Yet, as historians engage this fine work, they will want to keep in mind that its organizational structure works in many respects to obscure the very subject Ely ultimately tells us mattered most: politics. In isolating his various topics from one another and focusing on doctrines rather than disputes, Ely deprives his subject of much of its coherence and its unfolding drama.

A more integrated approach would enable us to see more clearly how legislation and judicial rulings occurred in a rich context charged with fevered politics, intense ideological division, and dynamic technical and economic change. We would see how judges struggled to reconcile rulings pertaining to railroading, which often presented them with conditions not found elsewhere in the economy, with philosophies that might apply across all segments of economy and society. Above all, we would perceive how these judges and other key actors, who often moved easily...