Daniel on How Railroad Lawyers Coopted the Carmack Amendment

Josiah M. Daniel III, Visiting Scholar, Department of History, The University of Texas at Austin, and a Retired Partner in Residence, Vinson & Elkins LLP, has posted Cooptation of the Carmack Amendment by the Railroads, 1906-1917: A Study in Associational Lawyering.  (Although a version appears in volume 50 of the Northern Kentucky Law Review, Mr. Daniel considers this posting to SSRN as the final version.)

Edward W. Carmack (LC)

The Carmack Amendment to the Interstate Commerce Act has governed interstate freight loss and damage claims since enactment in 1906 as a rider to the Hepburn Rate Bill. The conventional wisdom is that the Carmack Amendment is the exclusive claim a shipper may make, preempting all state-law rights and remedies. That view is reinforced by nearly two score of decisions that poured from the U.S. Supreme Court during the years from the statute’s enactment to World War I.

This article challenges the conventional wisdom. The author makes two claims. First, the purpose of the Carmack Amendment was not to benefit the common carriers but rather the shippers, by providing a simple, nonexclusive, federal cause of action against interstate railroads for cargo loss and damage. Second, the carriers co-opted that intention by means of associational lawyering from 1906 to 1917.

For the backdrop, the article reviews the realities of shippers’ loss-and-damage claims immediately before enactment of the Carmack Amendment. The railroads routinely snubbed such claims and avoided such liabilities by the contractual terms of their bills of lading and by their claims practices. Against that backdrop, the article presents, for the first time, a deep legislative history of the Carmack Amendment and demonstrates its shipper-centric purpose. The author defines "deep legislative history" as conventional legislative history coupled with serious research into the archive of the key legislator, here Senator Edward W. Carmack, and the shippers’ organization that proposed the legislation to him.

The author also coins a new collocation "associational lawyering" as “the deliberate work of the railroads,’ or any other industries,' attorneys who meet, discuss, formulate, share, and coordinate about legal strategy and appellate argumentation in order to seek on behalf of their collective clients to co-opt the Carmack Amendment, or any other legal development perceived as a threat to the industry.” The author finds and demonstrates the associational lawyering for the railroads that co-opted the Carmack Amendment. Leading railroads conducted periodic conferences of their important lawyers to analyze the statute, craft arguments against it or to limit it, and coordinate appellate strategy to obtain the avalanche of rulings of the Supreme Court, thirty-nine in all, substantially all in favor of the carriers, that the author charts in the appendix. The shippers’ lawyers were simply uncoordinated and overmatched.

Associational lawyering is the causal explanation of the cooptation of the Carmack Amendment by the railroads that occurred from 1906 to 1917.

Medhi on the Indo-Afghan frontier

 Abhilash Medhi (Mount Holyoke) has published "Infrastructural Contingencies and Contingent Sovereignties on the Indo-Afghan Frontier" in Modern Asian Studies (2020), 1-38. Here's the abstract:

The Khyber Pass Railway is a defunct 42-kilometre-long railway line that connects the western reaches of Peshawar to the Afghan border. Completed in 1925 mainly to carry British troops, the railway line failed to attract decent passenger or commodity traffic. Instead, it made an impact on a more primal register. Negotiations carried out between the British Government of India and populations from around the Khyber to allow its construction reproduced and rearranged lines of authority among the latter. They also embedded colonial administrators in tribal hierarchies. Efforts to acquire land and labour opened up spaces of collaboration between the colonial administration and members of frontier tribes, effectively contributing towards a reconfiguration of sovereign power in the area. This article weaves questions of customary law and colonial legal cultures into a retelling of the history of the Khyber Pass Railway. Examining transactions across three domains of sovereign power—the economic right to use land, extension of juridical regimes, and territorial control—it argues that the operation of sovereignty in the late-colonial Indo–Afghan frontier did not adhere to conventional ideas about its concentration and monopoly. The colonial government as well as members of frontier tribes deployed the inconclusive nature of their transactions strategically and, often, sovereign power lay with the stakeholder who could determine which domains fell within the bounds of the sovereignty question and which domains fell without.

Further information is available on the Modern Asian Studies website via Cambridge University Press.

--Mitra Sharafi