After decades of excessive economic regulation nearly destroyed the U.S. railroad industry, Congress responded by encouraging market mechanisms to replace regulators’ whims. Unfortunately, in a decision involving a large coal shipper and a major railroad, the Surface Transportation Board has attempted to expand its narrow power to police rail carriers’ common carrier obligations in a manner that undermines Congress’s preference for private contracting between carriers and their customers. In doing so, the Surface Transportation Board privileged one customer over its competitors and other rail shippers, which also contradicts congressional intent.
In U.S. and British common law, a common carrier is a
