Railroads and American Law

Journal of Transport History, The, Sep 2003 by Kostal, R W

James W. Ely Jr, Railroads and American Law, University Press of Kansas, Kansas KS, 376 pp., US$39.95 (L33.50).

It is no enviable task to review a work of academic history which, as the author candidly admits in its first passages, does not offer an integrated vision of its subject matter. In the prologue to Railroads and American Law Professor Ely declares an aversion to 'grand theories' about historical data, and a similar reluctance 'to impose a thesis on the intricate and sometimes contradictory legal history of railroading' (p. viii). In place of sustained argument readers are presented with a chronological survey of the interface of some American railroad companies and some American laws from the inception of the railroads in the 1830s to their apparent decline after the Second World War. Professor Ely's study brings to mind what another reviewer wrote of another book, that on the kindest reading it should be regarded as 'a useful compendium of facts'.

To be sure, Railroads and American Law covers a lot of historical ground. Its thirteen chapters describe a wide variety of legal problems as they arose in the context of railroad organisation, land grants, commerce, insolvency, taxation, and liability for personal injury, among many other subjects. Students and scholars in search of points of entry into the copious American historiography of railroad law will do well to start with this book. The book will also provide a reliable primer to the legal character of railroads as companies, and to some of the major legal conflicts engendered by their emergence, development and operation. The book works less well, however, when considered either as a thematic treatment of the history of American railroad law, or as a series of interrelated historical essays. While Professor Ely purports to be disdainful of 'grand theory', in fact each of his chapters advances a point of view - if only subtly and discursively - about how we should think about the place of railroad corporations in American history.

In the years following the Civil War, the author observes, railroad companies that had been promoted to realise local and regional aims were swallowed up by eastern-based financial conglomerates serving, seemingly, no masters but private power and profit. In this era, American railroad companies and their 'robber baron' owners came to be roundly feared, even despised, for (what were seen as) predatory commercial and labour practices. Professor Ely reports that by the 1890s 'many observers' believed that the new railroad leviathans had come to exert so much political power that they 'threatened the very basis of republican government' (p. 84). The author himself, however, appears not to share this view. In this and a number of other instances, Professor Ely takes the position that critics of late nineteenth-century railroad corporations have consistently exaggerated their wickedness and underestimated their virtue.

This is a telling aspect of Professor Ely's book. For while its author professes theoretical and political disengagement from his subject-matter, his text exhibits a persistent (if strangely oblique) revisionism of those historians who have excoriated the political and economic behaviour of American railroad corporations. The third chapter of the book, by way of example, concerns railroad regulation in the nineteenth century. After noting that 'many observers' have argued that railroad companies routinely abused their monopolistic position (in the setting of freight rates, for example), Professor Ely suggests that 'railroads were often treated as a scapegoat', and that '[m]uch of the antagonism toward railroads was prompted less by specific complaints than by unease about the sweeping economic and social transformation of American life' (p. 84). In the opinion of this reviewer, the problem with such a statement is not only that it reads like an apologia for the railroad companies, but that in terms of evidence and analysis it is as arbitrary as the judgments it seeks to qualify or overturn.

The same cursory revisionism is also apparent in Professor Ely's treatment of the performance of judges, federal judges particularly, in railroad litigation. In the late nineteenth and early twentieth centuries, railroad companies launched a series of full frontal legal assaults on government regulation. Their main siege engine was the due process clause of the Bill of Rights. True to form, Professor Ely faithfully reports that many legal historians have criticised the federal judiciary in this period for having 'constitutionalised' corporate property interests at the expense of public-minded and democratic regulatory initiatives. Ely reports these criticisms, but does not elaborate them. Nor does he endorse them. In Ely's view, the legal counter-attacks of the railroad companies actually deserve credit for having made 'a pivotal contribution to constitutional law by gaining Supreme Court acceptance of the premise that due process imposed substantive restraints on government power over private property' (p. 96). And while some scholars have had 'harsh words' for judicial review by the Supreme Court, and more particularly for the ideological mainsprings of its judgments, Professor Ely applauds the Court for its robust utilitarianism. Like a panel of sensible supply-side economists, the 'Court recognized the vital importance of investment capital in order to achieve economic growth' (p. 98).