Railroads and American Law

Published by EH.Net (July 2003)

Ely Jr., James W., Railroads and American Law. Lawrence, Kansas: University Press of Kansas, 2001. ix + 365 pp. $39.95 (hardcover), ISBN: 0-7006-1144-4.

Reviewed for EH.NET by Harvey G. Hudspeth, Department of Social Sciences, Mississippi Valley State University.

The History Book of the Month Club refers to this as the “first comprehensive legal history of the rail industry” which “chronicles the advent of the railroad and its impact on American law.” On that point, I have no argument. Regrettably, by nature, both railroads and American law are considerably dry subjects. A combination of the two therefore should not prove to be much better. While James Ely does attempt to challenge this notion in his latest work, I seriously doubt anyone is going to sit around and wait for the movie to come out. Nevertheless, Ely’s Railroads and American Law is a very thorough and comprehensive study of the joint evolutions of both railroads and the law. It is a work to which serious scholars of either or both subjects should pay special attention.

Seemingly deliberative in its effort to dichotomize between history and the law, the book can easily be divided into three distinct sections. While chapters one through four concentrate mainly on the development of railroads in the nineteenth century, chapters five through nine concentrate more on specific areas of the law. These include topics ranging from slavery and segregation to insolvency and liability for personal injury. Chapters ten through thirteen then pick up with the development of both railroads and railroad law through the twentieth century. While you cannot really separate neither law from history nor history from law, as both a historian and a former practicing attorney, I had little difficulty in determining which chapters would appeal mainly to the former as opposed to the latter.

In his epilogue Dr. Ely, a professor of both law and history at Vanderbilt University, recounts the various themes that emerge from his study. While he is most persuasive in dispelling the myth that the federal government allowed nineteenth century railroads to operate in an atmosphere of “total laissez-faire,” his argument that railroad regulation was based largely on political and regional concerns is not exactly new to most historians. On the other hand, Ely’s contention that railroad policy was determined more by legislators than judges is new and he does much to refute the long-held view that Gilded Age courts were essentially the “handmaidens” of the railroad industry. Finally, Ely does an excellent job in tracing the evolution of both the railroads and railroad law from local to national entities.

Ely goes on to argue that the federal government’s attempt to regulate America’s railroads has, at best, left a “cautionary legacy.” Noting that the vaunted reforms of the Progressive Era were mistakenly aimed more at previous problems than future potential difficulties, he concludes that these regulations were ultimately self-defeating insofar that they placed the industry in a straightjacket that inevitably led to its economic decline. In the decades that followed, the bureaucracy’s remedy to this was to impose even further unrealistic regulations that only served to make matters worse. In the meantime, Ely reasserts his prior contention that the courts, rather than issuing rulings deliberately designed to bolster the railroads at the expense of “weaker segments of society,” instead “made no persistent attempt to shield railroads from public controls.”

In his conclusion, Ely maintains his prior assertion that the development of the railroad industry in the nineteenth century helped stimulate the corresponding development of railroad law which in turn established the model for our current law on monopolies and American industries overall. While legislators and judges might have occasionally been guilty of being overly protective of railroads as a means to encourage overall economic growth, these interests had to ultimately be balanced by other considerations affecting the overall American public. As our fears of a dominant railroad monopoly have long since vanished in favor of growing fears over potential monopolies in other industries, Ely’s study is undoubtedly a good model in which to predict the future.

Dr. Harvey G. Hudspeth is a graduate from the University of Mississippi and currently serves as History Program Coordinator at Mississippi Valley State University. A former practicing attorney, he has published two articles related to nineteenth century railroad development in the West Tennessee Historical Society Papers.