IN THE ARENA: THE TEXAS SUPREME COURT’S STEADY REIN ON RAILROADS AND BIG BUSINESS, 1880 – 1900

William J. Chriss, University of Texas

Abstract

Like the pre-Lochner United States Supreme Court, the late nineteenth century Texas Supreme Court did not see its role as one of protecting big business from government regulation. Texas courts did not, as a rule, use judicial activism to defend laissez-faire economics. Rather, like many other courts, state and federal, the Texas Supreme Court allowed the other two branches of government a relatively free hand in regulating business in general and railroads in particular. This is not to say that the Texas court was anemic or passive. In fact, the Texas Supreme Court went well beyond merely deferring to legislative regulation. It exercised its own decision-making authority to defend what Paul Kens calls “the rights of the community.” In those days, most of these rights were enshrined in the judge-made common law, particularly the law of torts. Here the Texas courts began to use judicial power to carefully adapt common law rules to protect ordinary people from new industrial behemoths and their powerful corporate masters. This development of the tort law in Texas illustrates one way in which Paul is correct in saying that pre-Lochner courts across the nation saw their decisions not as balancing the “rights” of big business against the regulatory power of government, but as balancing them against the common law rights of the broader community.