Lawyering for the Railroad: Business, Law, and Power in the New South. (Book Reviews).

Lawyering for the Railroad: Business, Law, and Power in the New South. By William O. Thomas. (Baton Rouge: Louisiana State University Press, c. 1999. Pp. xxii, 318. Paper, $24.95, ISBN 0-8011-2504-0; cloth, $47.50, ISBN 0-8071-2367-6.)

William Thomas's outstanding new book reflects the wide net that can be cast in the still largely untapped waters of legal history where law, business, and politics intersect. Thomas considers how one technologically new industry, the railroads, inspired its arrayed retainer counsel, in-house attorney-lobbyists, and politician-servitors to adapt horse-and-buggy legal doctrines and/or to create new ones, when advancing "iron-horse" corporate interests.

Thomas shows that pre-World War I southern attorneys were strikingly successful in serving railroads, which, along with banks, were their most important clients. Still professionally unorganized (i.e., before statewide bar associations existed to set standards for admission and practice), the bar was composed almost totally of white Protestant males from small towns and rural hamlets. Although such men were eager to exploit the opportunities the rail industry afforded for energetic, inventive, often lucrative lawyering, these aggressive, devoted attorneys at first resisted changing their professional habits--most remained in solo practices or small and commonly transitory partnerships. But, unevenly yet ultimately irresistibly, the ways that railroad corporations organized themselves in specialized functional hierarchies pressured a slowly growing number of larger firms to mimic their clients. Lawyering confirms the probability that law firms with railroad clients led the way toward modernizing attorneys' professional lives, in part the more effectively to attract railroad clients and to defend them against private claims and constricting public regulations.

In successive deft chapters Thomas untangles the complex interrelationships that joined (and still join) lawyer-lobbyists, politicians, and businessmen in a power elite that sometimes nurtured chaotically free enterprises and that were configuring the New South. His rare talent for tracing these inter-relationships is exhibited throughout Lawyering, as is his ability to communicate legal technicalities to the lay reader. For example, chapter 5 surveys the eclectic legal barricades that railroad lawyers erected to defend their clients against private complainants and public regulators. Defenses were needed because railroads, like future oil and gas producers, were technologically novel industries that were also inescapably intrusive. Simply to lay track, railroads had to buy or lease huge, contiguous rights-of-way through privately owned lands. When purchase tenders failed, railroad lawyers, often through politically lubricated condemnation proceedings, got titles to holdouts' land transferred to their clients. But thousands of land titles were clouded by defective boundary surveys and other inadequate courthouse records. Good lawyering for a railroad required its attorneys to cope with such common uncertainties in ownership.

With respect to claimants of property losses (such as livestock impacts, explosions, grade-crossing tragedies, and diverse other mishaps), railroad lawyers negotiated settlements, or, those failing, defended their client in lawsuits, but railroads' spectacular abrasiveness compounded both their lawyers' difficulties and opportunities for inventive practice. Railroad lawyers adapted familiar legal doctrines on contracts and torts, especially those dealing with common carriers' limited responsibilities, assumptions of risk, and negligence. Small-print exculpatory clauses multiplied in shippers' contracts, passengers' tickets, and, by inference, in oral labor contracts. But exculpatory clauses failed to shield railroads from the horrified public reaction to highly publicized locomotive accidents. Often facing unsympathetic local juries and judges, railroad lawyers argued that passengers and workers knowingly assumed risks even of death or disfigurement, that ancient trespassing doctrines applied when (as occurred terribly often) trains struck children playing on unfenced railroad property, and that refurbished contributory negligence and "fellow-servant" doctrines blunted the claims of injured or slain workmen.

Risks notwithstanding, local boosters still sought rail lines and terminals to enrich their communities, but their efforts often engendered interest conflicts and other corruptions involving public officials and rail executives. In depressed as in prosperous years Texas railroad attorneys ably defended their clients' pricing and other practices in courts and before new state administrative-regulatory bodies such as the Texas Railroad Commission. In chapters 6 and 7, Thomas illuminates the unevenly successful efforts of such Populist-Progressive creations to rationalize rail fares, to increase passenger and cargo safety, to replace lawsuits with compensation schedules for injured workers, to end free passes for politicians and other inequities and frauds, to curtail monopolies, and, less creditably, to accommodate separate-but-equal race discriminations in passenger cars.

Thomas concludes that lawyering for a railroad insulated both in-house law staff and lucratively retained outside counsel from concerns about the social consequences of their professional services. "Free of moral responsibility," he writes, "lawyers could gain a comfortable living through collusion with railroad corporations in manipulating a region desperate for a measure of prosperity" (p. 278), a view that should engage the attention of contemporary ethicists who debate the limits of lawyers' moral as well as legal duties.

Indeed, Lawyering deserves the close and respectful attention of not only lawyers but of all students of America's past. This is high-quality cross-disciplinary scholarship that skillfully mines relevant primary and secondary sources (although Harvard's rich Dun & Bradstreet field reports would have served Professor Thomas well). Though it appeared too late to inform my own recent book on a giant transnational Houston law firm (Craftsmanship and Character: A History of the Vinson & Elkins Law Firm of Houston, 1917-1997 [Athens, Ga., 1998]), I will relieve the author from all penalties called for by his offense of not publishing earlier on one condition--more fine history from him. Meanwhile, thanks for Lawyering.