Daniel on Cooptation of the Carnack Amendment by the Railroads, 1906-1917: A Study In Associational Lawyering @VinsonandElkins

Josiah M. Daniel, III, Vinson & Elkins, LLP, and the University of Texas, Austin, Department of History, is publishing Cooptation of the Carmack Amendment by the Railroads, 1906-1917: A Study in Associational Lawyering in volume 50 of the Northern Kentucky Law Review (2023). Here is the abstract.

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 twoscore 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.

Download the article from SSRN at the link.