ISSN 1062-7421
Vol. 12 No. 2 (February 2002) pp. 106-108.

RAILROADS AND AMERICAN LAW by James W. Ely, Jr. Lawrence, KS: University Press of Kansas, 2001.365 pp. Cloth $39.95. ISBN: 0-7006-1144-4.

Reviewed by David Schultz, Graduate School of Public Administration and Management, Hamline University.

If Justice Holmes was correct in declaring that the life of the life has not been logic but experience then it is not reason but technology that powers constitutional change. Innovations in technology not only open up new legal possibilities that the Constitution must consider, but they offer new threats that challenge the regulatory framework of the law. Telegraphs, television, automobiles, airplanes, and the Internet are just a few of the many technologies that have forged new ground as the constitution is adapted and adopted to them. Yet before all of these technologies, there was the railroad.

Railroads are the engines of constitutional change in James W. Ely, Jr.'s RAILROADS AND AMERICAN LAW. In perhaps the best book yet written on the topic, the author declares that, "(T)he advent of the railroad had a profound impact on the evolution of American law. The railroad industry raised a host of novel problems and placed unprecedented demands on the legal system" (p. vii). It forged significant innovation in the law from matters on federalism, tort, labor, and corporate law, eminent domain and land use, to civil rights. The constitutional regulation of, and litigation arising out of the rails reads like a greatest hits of a standard undergraduate constitutional law course, if not a 1aw curriculum. Riding the legal history of the railroads is really a history of the American Constitution, if not
American history.

The book's chapters follow the history of the railroads from the early nineteenth to the close of the twentieth centuries. Beginning with a discussion of canals, Ely describes how as the railroad industry began, the former sought protection against the latter. Canal owners sought monopolies in transportation routes against railroads that were more efficient and quicker than the barges. Both sides could initially claim victory, but railroads eventually won out. Innovations in eminent domain law made it possible for railroads to acquire vast quantities of land needed to build lines, but also to sell off to pay for tracks. In many cases, compensation
did not need to be paid to owners as the courts ruled that the increased value of their property as a result of the railroads offset the need for compensation.

Chapter two examines the role of the railroads during the Civil War. The North's superiority, in part, according to Ely, resided both in the more extensive lines that it had in comparison to the South, but also in how it regulated and used the lines in the service of the war effort. Conversely, the South's decentralized political structure only exacerbated the inability to use its few lines to move troops around. Sherman's march to the sea, the burning of Atlanta, and the destruction of the southern rail lines also contributed to the South's failure.

Yet, in many ways the golden era of

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the railroads is after the Civil War where constitutional innovation arising out of attempts to regulate it produced cases such as EX PARTE YOUNG (1908), SANTA CLARA COUNTY v. SOUTHERN PACIFIC RAILROAD COMPANY (1886), and the SHREVEPORT RATE CASE (1914). These decisions were critical to federalism, corporate regulation, and Commerce Clause jurisprudence. In addition, the railroads were also at the center of much social controversy, as IN RE DEBS (1895) and PLESSY v. FERGUSON (1896) serve witness. Though the end of the nineteenth century, the Progressive Era, World War I and II,
railroads continue to be the center of economic and social conflict, spurring workers compensation legislation and the first significant federal labor legislation, The Railway Labor Act in 1926. Up to the present era, railroads continue to be the object of important legislation, with Amtrak only the most recent example of that importance.

Yet, besides seeking to tell the constitutional history of railroads and the relationship between the two, the book also argues against historians such as Morton Horwitz (1977, 1992) who argued that the law is used mainly in aid of private industry and that, specifically in the early nineteenth century, that the courts came to the defense of new industrial and class interests against the old. The law, according to Ely, is not simply employed to subsidize economic growth at the expense of the weak or that it was used singularly to defend commercial interests against labor (p. 283). The author sees a more complex history with the law providing both victories and defeats for the rail industry.

One lesson of the book recalls Karl Marx's famous gravedigger theses that the weapons of the bourgeoisie will eventually come to be used again them. Here, the legal and constitutional innovations forged by the railroads eventually came to be used against them in service of subsequent automobile and air technologies. Legal privileges they acquired came to be used against them, and as railroads fell the protectionist legislation of canals, so too the railroads sought protection, but ultimately found their demise, according to Ely, in these very rules and provisions they precluded them from evolving and innovating to meet the new challenges of the twentieth century.

Few books can be described as innovative and fun to read; RAILROADS AND AMERICAN LAW is exception to this rule. Besides constructing a readable
framework for understanding constitutional law, it also tells an important story about how the law can be used in service of the private sector and economic development, with positive and negative consequences. If there is any criticism of this book it is that many of the chapters are too brief to tell a complete story of the rich complexities that specific areas of law entail. Chapters on eminent domain, labor, and tort law, for example, while charting out the basic course of the law, need more development to give a more in depth understanding of how legal issues such as contributory negligence and joint and several liability evolved. For example, missing from the chapter on tort law is the famous PALSGRAF v. LONG ISLAND RAILROAD COMPANY (1928) decision, which redefined liability law.

Another criticism may be in the overall gloss of the author that implies an anti-regulatory attitude towards the law, placing blame on it and not the railroad industry or the latest technology as the cause of its demise. This perspective is particularly evident in the closing chapter, seeing the revival of them in the

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deregulation movement of the 1970s. Yet the story that Ely tells makes this argument compelling and a challenge to those who disagree.

Although Ely also seeks to discredit Horwitz, his book provides important support for the thesis that the law subsidizes or supports private industry at the expense of other parts of society. Yes, the law did hand victories and defeats to the railroad industry when its record is viewed from a single point in time. But viewed historically, at times the law favored one force or means of production at the expense of an earlier one, thereby making the railroads winners as they were an ascending technology, losers as they declined. The Owl of Minerva may have thus been riding either the caboose or an engine when it spread its wings while the legal tools acquired by the railroads were digging the graves of others or themselves.

Overall, RAILROADS AND THE LAW is an important contribution to constitutional law and knowledge of how the law is employed by, or deployed against private industry. Constitutional and legal history scholars will enjoy the book-as will train buffs-but so will students as an assigned or optional reading in a class.

REFERENCES:

Horwitz, Morton J. 1977. THE TRANSFORMATION OF AMERICAN LAW 1780-1860. Cambridge, MA: Harvard University Press.

------. 1992. THE TRANSFORMATION OF AMERICAN LAW 1870-1960: THE CRISIS OF LEGAL ORTHODOXY. Cambridge, MA: Harvard University Press.

CASE REFERENCES:

EX PARTE YOUNG, 290 U.S. 123 (1908).

IN RE DEBS, 158 U.S. 564 (1895)

PALSGRAF v. LONG ISLAND RAILROAD COMPANY, 164 N. E. 564 (1928).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

SANTA CLARA COUNTY v. SOUTHERN PACIFIC RAILROAD COMPANY, 118 U.S. 394 (1886).

SHREVEPORT RATE CASE, 234 U.S. 342 (1914).

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Copyright 2002 by the author, David Schultz.