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FW: Childs on Thomas, _Lawyering for the Railroad_

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  • A.J. Wright
    fyi..this title may be of interest to some subscribers...aj wright ... From: H-Net Review Project Distribution List [mailto:H-REVIEW@H-NET.MSU.EDU] On Behalf
    Message 1 of 1 , Jun 15, 2000
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      fyi..this title may be of interest to some subscribers...aj wright

      -----Original Message-----
      From: H-Net Review Project Distribution List
      [mailto:H-REVIEW@...] On Behalf Of H-Net Reviews
      Sent: Thursday, June 15, 2000 11:43 AM
      To: H-REVIEW@...
      Subject: Childs on Thomas, _Lawyering for the Railroad_

      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 EH.Net by William R. Childs <childs.1@...>,
      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 forty railway legal
      departments. He supplemented these organizational records with
      another twenty 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" (xiii n.1). 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 twentieth 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 219 n.42, 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.

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