Lawyering for the Railroad: Business, Law, and Power in the South

Published by EH.NET (May 2000)

William G. Thomas. Lawyering for the Railroad: Business, Law, and Power in

the South. Baton Rouge: Louisiana State University Press, 1999. xxii + 318

pp. Maps, photographs, notes, Note on Manuscript Sources, bibliography, and

index. $47.50 (cloth) ISBN 0-8071-2367-6; $24.95 (paper) ISBN 0-8071-2504-0.

Reviewed for H-Business and EH.NET by William R. Childs, childs.1@osu.edu,

Department of History, Ohio State University.

A Flawed Attempt to Synthesize Business, Legal, and Regional History

Focused on a topic which historians have not investigated in any depth–the

role of lawyers in the evolution of the railways in the South–this is a book

that scholars of business, the South, and the law should consult. But there are

problems with the book: It is not well-conceived or written and too often it is

not always clear in the footnotes what sources sustain the author’s assertions.

The major strength of the book lies in the sources that William G. Thomas

uncovered, particularly records of over 40 railway legal departments. He

supplemented these organizational records with another 20 manuscript sources,

mostly the papers of individuals, but also including the voluminous Baker &

Botts History Collection, which chronicles the important history of the

Houston, Texas, law firm. His short “Note on Manuscript Sources” furnishes a

concise overview and helpful comments on the significance of some of the

sources. Nonetheless, the manner in which Thomas conveys the results of his

research is disappointing.

Perhaps the problem lies in Thomas’s effort to meet too many purposes in

writing the book. Thomas, who studied at the University of Virginia, where he

is now director of the Virginia Center for Digital History, is interested in

lawyers (his family has many) and their work, in the South as a region, and in

how “monopoly power worked” (xi). He attempted an

“interactive” approach to the law and society in which “law and legal processes

both shape and derive from social and economic change” (xiiin1).

He also tried to write a social history of Southern lawyers, as well as a

business history of railroading from the perspective of the legal department.

So, he wanted to synthesize business, legal, and social history in a regional

setting, an endeavor that requires not only expertise in each field but also

facility in composition. Had Thomas been more careful in writing introductions

and conclusions to each chapter–helping the reader keep clear the many threads

of his complicated tale–he might have accomplished many of these goals.

Instead, anecdotes are not always clearly related to the larger themes;

repetition of evidence appears without reason; and themes (such as federalism)

are introduced and dropped without adequate development in the text or notes.

And, as those of us who have worked in Southern history understand only too

well, trying to generalize across the region holds numerous traps. While in

many ways southern, Texas,

for example, does not always fit the general economic and political patterns

found in the rest of the Old Confederacy; yet, much of Thomas’s key evidence

comes from Texas.

The book generally follows a chronological approach over nine chapters.

When railroads first appeared, Thomas argues, they hired local lawyers to help

in establishing rights-of-ways and to work with construction aspects of the

business. Once the railways were up and running, the need for a permanent legal

department emerged. In chapters 3, 4, and 5, he attempts to show how the growth

of railways changed the nature of legal departments

(they became more hierarchical and bureaucratic) and how litigation,

particularly personal injury lawsuits, evolved. Growth also forced railway

lawyers into the role of lobbyist in the state legislatures, and eventually in

congress. Thomas spends a lot of time focusing on personal injury litigation

(almost to the exclusion of the important work of regulation).

He indicates that tensions emerged as corporate managers attempted to demand

total loyalty from the hired hands; local lawyers had to weigh the balance

between the steady assignments associated with the interstate railroad legal

department and the negative impact that work would have on the rest of their

local practices.

In chapter 6, “Progressive Reform and the Railroads,” Thomas argues that the

consolidation movement in railroading at the turn of the century prompted many

Southerners to oppose the “monopoly” power of the railways.

The 1890s and first decade of the 20th century were busy times for railway

lawyer-lobbyists as they attempted to undermine legislative controls before

they were enacted and, if failing that, after they were enacted. Several

anecdotes indicate that the lawyers and the corporate managers sometimes took a

cost-benefit approach in deciding whether to fight legislation and complaints

from customers; sometimes it made more economic sense to clean up a work yard

in order to reduce the number of potential personal injury suits. Beyond the

anecdotes, however, Thomas does not indicate to what extent lawyers became

involved in the management decisions of the railways.

Meanwhile, lawyers began to engage in their own profession-specific

associational activities. They used this associational power to prepare for

appeals in the Federal court system and to lobby against bills in Congress,

but there remained tension among the members, for they often met one another as

adversaries in personal injury suits.

Chapters 7 and 8 continue the story of southern railway lawyers interacting in

the national arena. Chapter 7 is notable for its confusing narrative on

delaying tactics (see pp. 218-219 and the citations in 219n42, where Thomas

confuses state and national delay tactics). In Chapter 8, Thomas discusses the

liability issue as it relates to the Federal arena. Congressional legislation

in 1906 and 1908 prompted railway legal departments to move liability cases to

Federal courts in order to avoid more onerous state laws. The several pages at

the end of this chapter on the conflicts between state and Federal regulation

add nothing to what scholars already know on this subject. In fact, Thomas is

not very sure footed on the evolution of the regulation of railways. To cite

one example, he claims that Munn v.

Illinois (1877) was reversed in 1890 (p. 170) and does not seem to

understand that the U.S. Supreme Court waxed and waned on the issue of state

versus Federal regulation of railways before and after Munn nor that

Munn was more important for what it said about government regulation of

business than it was for state-Federal jurisdiction. Chapter 9, “The Changed

Law Business,” repeats too much information from earlier chapters,

yet fairly well summarizes the author’s overall argument. Still, Thomas relies

too heavily here on Texas (and on Baker & Botts) and Virginia to make the

generalizations that he does about the entire region.

While Thomas ignores for the most part the role of lawyers in the development

of regulation, he does include helpful insights on a few key topics, including:

analysis of the free pass, which dominated much of the politics of railroading

at the turn of the century (I learned a lot from this; see especially pp.

92-96, 178-181); a useful overview of the railways’ attempts to sidestep Jim

Crow laws (219-225); and, interesting anecdotes on particular train wreck cases

(Chapters 3 and 4 especially).

Thomas occasionally alludes to the lawyers’ attempts to settle cases out of

court, but, as with much else in the book, he does not elaborate on this

important insight. In short, specialists interested in these topics should

consult the book. Other readers might benefit from reading Chapter 9 and the

Conclusion.