Customer Reviews

Railroads and American Law

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James Ely's Railroads and American Law investigates then relationship between the courts and America's first "big business" and the impact railroads had on the American legal landscape. Ely states in the introduction how he wants to avoid stating a thesis (which seems to be a typical lawyer's ploy to avoid committment) but then establishes themes to support his case.

Ely challenges popular myth that railroads literally carried the courts and the lawmakers in their back pockets. The image of 19th century railroads taking land from people and getting all the laws and court decisions in their favor is simply not true. Ely demonstrates how some railroads won court cases while others lost. At times labor or the travelling public won cases while in others railroad interests prevailed. There is no set pattern of cases where one side prevailed over the other. Rates for freight are but one of Ely's examples. Another was railroad mergers and the application of antitrust laws.

This book is not for the casual reader. It is in-depth and at times kind of boring. But legal historians will enjoy the large number of Supreme Court cases referenced and how the author analyses each. I chose this book because I enjoy reading about both topics, railroads and law. Others in this same boat will likely find much offered here.

This fine book is, as Herbert Hovenkamp has called it, "a monumental achievement." If Ely has missed a connection between railroad law and any other important topic in American legal history, I am unaware of it--everything from the use of slaves to build railroads to insolvency, receiverships, and train robberies.

Ely is not intimidated by the reigning thesis that railroads were "smoking devils" run by ruthless capitalists who bent legislatures to their greed or the notion that judges fell over themselves to protect railroads from tort liability in the name of economic progress. Ely argues instead that far from "allowing carriers a free hand, lawmakers enacted a host of preventive measures and insisted that railroads must bear the cost of regulations to protect the public." (134) Refreshing and right on target is his description of the Mann-Elkins Act (1910) as a "regulatory straitjacket" that helped destroy the railroads.

The potential reader of this book should be warned that though clearly written, it is encyclopedic. Teachers of economic history, legal history, and transportation history will here discover a wealth of illustrations for their classes; a general reader with no absorbing interest in railroads will probably find the presentation overly academic.