Race, class, and legal ethics in the early NAACP (1910-1920)

Law and History Review

Volumn 20, Issue 1, 2002, Pages 97-146

  Carle, Susan D ^a  

^a AMERICAN UNIVERSITY   (United States)

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EID: 4644365090     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/744156     Document Type: Review

References (180)

1. Discussions of the first NAACP national legal committee are contained in footnotes to August Meier and Elliott Rudwick, "Attorneys Black and White: A Case Study of Race Relations within the NAACP," in August Meier and Elliott Rudwick, Along the Color Line: Explorations in the Black Experience (Chicago: University of Illinois Press, 1976), 129 n., 159-60 nn. 22-25, 170 n. 104
2. Charles Kellogg's classic general history of the NAACP contains a short discussion of some of the committee's early work. Charles Flint Kellogg, NAACP: A History of the National Association for the Advancement of Colored People, vol. 1, 1909-1920 (Baltimore: Johns Hopkins University Press, 1967), 60-62
3. There are occasional references to the committee in B. Joyce Ross, J. E. Spingarn and the Rise of the NAACP, 1911-1939 (New York: Atheneum, 1972), 21-22, 35
4. More comprehensive treatments of the internal workings of the NAACP's litigation operations begin with the mid-1920s. See Mark V. Tushnet, Making Civil Rights Law (New York: Oxford University Press, 1994)
5. Mark V. Tushnet, The NAACP's Legal Strategy against Segregated Education, 1925-1950 (Chapel Hill: University of North Carolina Press, 1987)
6. Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Alfred A. Knopf, 1975)
7. Loren Miller, The Petitioners: The Story of the Supreme Court of the United States and the Negro (New York: Panetheon, 1966)
8. See Tushnet, Making Civil Rights Law, 272-83
9. see also Susan D. Carle, "From Buchanan to Button: Legal Ethics and the NAACP (Part II)," University of Chicago Law School Roundtable 8 (2001): 281-311
10. 371 U.S. 415 (1963)
11. See Black's Law Dictionary, 6th ed. (1990), s.v. "test case."
12. 347 U.S. 483 (1954)
13. see generally Miller, The Petitioners
14. and Kluger, Simple Justice
15. In 1839, for example, in Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539, 558-59, 588 (1842), the states of Pennsylvania and Maryland negotiated a special act to test the constitutionality of Pennsylvania's fugitive slave law
16. By the 1870s, as Charles McCurdy has shown, large manufacturers in the sewing and beef industries had initiated expensive test case litigation campaigns to challenge state law impediments to growth of national product markets. Charles W. McCurdy, "American Law and the Marketing Structure of the Large Corporation, 1875-1890," Journal of Economic History 38 (1978): 631-49
17. In the civil rights arena, local work to challenge segregation through the courts had been going on since 1847, when Robert Morris, Sr., the nation's second African-American lawyer, challenged segregation in Boston schools. J. Clay Smith, Emancipation: The Making of the Black Lawyer: 1844-1944 (Philadelphia: University of Pennsylvania Press, 1993), 96-97
18. 163 U.S. 537 (1896)
19. See Smith, Emancipation, 283-85
20. Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (New York: Oxford University Press, 1987), 29-39
21. Plessy v. Ferguson: A Brief History with Documents, ed. Brook Thomas (Boston: Bedford Books, 1997), 4-5
22. See Cheryl I. Harris, "Whiteness as Property," Harvard Law Review 106 (1993): 1709, 1745-50 (discussing implications of Plessy in establishing "whiteness" as a reputational property right)
23. August Meier, Negro Thought in America, 1880-1915 (Ann Arbor: University of Michigan Press, 1963), 173, 177
24. For a general history of the Niagara Movement, see Elliott M. Rudwick, "The Niagara Movement," Journal of Negro History 43 (1957): 177-200
25. Particularly good biographies of Du Bois that discuss his involvement in founding the Niagara Movement and the NAACP are August Meier, W. E. B. Du Bois: A Study in Minority Group Leadership (Philadelphia: University of Pennsylvania Press, 1960), 94-150
26. and David Levering Lewis, W. E. B. Du Bois: Biography of a Race, 1868-1919 (1993), 297-342, 386-434
27. One white woman, Mary Ovington, participated in the founding meeting and would later play a key role in supporting the NAACP's focus on test case litigation for organization building purposes while serving in various staff and leadership capacities during the NAACP's early years. For Ovington's description of these events, see Mary White Ovington, The Walls Came Tumbling Down (New York: Arno Press, 1969), 100-46
28. Mary White Ovington, Black and White Sat Down Together: The Reminiscences of an NAACP Founder (New York: Feminist Press, 1995), 56-60, 66-71
29. Rudwick, "The Niagara Movement," 180
30. The Niagara movement thus embodied Du Bois's idea of "the talented tenth" - i.e., the African-American elite who would lead the race to salvation from the "top downwards." See Lewis, W. E. B. Du Bois, 288-90, 316
31. "List of Legal Committee Members," ibid., Folder 557
32. See "Constitution and By-Laws of the Niagara Movement," in Pamphlets and Leaflets by W. E. B. Du Bois, ed. Herbert Aptheker (White Plains, N.Y.: Kraus-Thomason Organization, 1986), 59, 61
33. See Smith, Emancipation, 146-47, 179 n. 184, 181 n. 199
34. Garrett Power, "Apartheid Baltimore Style: The Residential Segregation Ordinances of 1910-13," Maryland Law Review 42 (1983): 289, 305-28
35. See Edwards v. Nashville, Chattanooga & St. RR., June 24, 1907 (ICC)
36. W. E. B. Du Bois, "Niagara Movement: Department of Civil Rights Supplement to the Department's Annual Report for 1906-07," in Pamphlets and Leaflets by W. E. B. Du Bois, 69-73
37. "The Niagara Movement" (1908), in Pamphlets and Leaflets by W. E. B. Du Bois, 77
38. "The Niagara Movement" (1909), in Pamphlets and Leaflets by W. E. B. Du Bois, 79
39. Rudwick, "The Niagara Movement," 190
40. See Rayford W. Logan, The Negro in American Life and Thought: The Nadir, 1877-1901 (New York: Dial Press, 1954)
41. On these conditions, which include a rise in lynchings of African-Americans, race riots, and the spread of new Jim Crow and voting disenfranchisement laws, see Ida W. Barnett, "Our Country's Lynching Record," Survey, 1 February 1913, 574
42. reprinted in Mildred I. Thompson, Ida B. Wells-Barnett (Brooklyn: Carlson Publishing, 1990), 277-80
43. Robert L. Zangrando, The NAACP Crusade Against Lynching, 1909-1950 (Philadelphia: Temple University Press, 1980), 5-8
44. C. Vann Woodward, The Strange Career of Jim Crow, 3d ed. (New York: Oxford University Press, 1974), 72-110
45. The backgrounds of the founding members of the NAACP are discussed in further detail in Victor M. Glasberg, "The Emergence of White Liberalism" (Ph.D. diss., Harvard University, 1971), 76-106
46. James M. McPherson, The Abolitionist Legacy: From Reconstruction to the NAACP (Princeton, N.J.: Princeton University Press, 1975), 391-92
47. These complex views about race manifested themselves in a host of ways, as when Ovington waxed poetic about the superior aesthetics of African-Americans as a group; or when Villard bickered with Du Bois, which Du Bois and others attributed to Villard's sense of racial superiority; or when Villard's and Storey's wives, both southerners, refused to entertain African-Americans in their homes. For a discussion of the racial attitudes of these white founders, see Glasberg, "Emergence of White Liberalism," 35-62
48. McPherson, The Abolitionist Legacy, 343, 376 n. 17, 389 and n. 44
49. William Stueck, "Progressivism and the Negro: White Liberals and the Early NAACP," The Historian 38 (1975): 58-78
50. Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983), 81, 96-97, 177-78, 195-96
51. see also Rudwick and Meier, "Attorneys Black and White," 132-33
52. Kellogg, NAACP, 104
53. See generally Eugene D. Levy, James Weldon Johnson: Black Leader, Black Voice (Chicago: University of Chicago Press, 1973)
54. James Weldon Johnson, Along This Way: The Autobiography of James Weldon Johnson (New York: Viking Press, 1938)
55. See Meier and Rudwick, "The Rise of the Black Secretariat," 109-11
56. In that case, lawyers advising African-American tenant farmers of their legal rights attended a meeting that was stormed by whites, resulting in a shoot-out and countywide rampage against African-American citizens. These lawyers were indicted for the crime of "barratry" and barely escaped lynching by a white mob. When Walter White traveled to the scene to investigate the situation for the NAACP, he, too, barely escaped with his life after his identity as an NAACP staff person was discovered. See generally Richard C. Conner, A Mob Intent on Death: The NAACP and the Arkansas Riot Cases (Middletown, Conn.: Wesleyan University Press, 1988)
57. For a discussion of elite turn-of-the-century lawyers' views of their duties to engage in reform efforts, see Robert W. Gordon, "'The Ideal and the Actual in the Law:' Fantasies and Practices of New York City Lawyers, 1870-1910," in The New High Priests: Lawyers in Post-Civil War America, ed. Gerard W. Gawalt (Westport, Conn.: Greenwood Press, 1984), 51-58
58. Who Was Who in America: A Companion Biographical Reference Work to Who's Who in America, vol. 2, 1943-1950 (Chicago: The A. N. Marquis Company, 1950), s.v. "Ewing, Thomas"
59. National Cyclopaedia of American Biography, vol. 31 (New York: James T. White, 1944), s.v. "Ewing, Thomas."
60. Who Was Who in America, v. 4, 1961-1968 (1968), s.v. "Wherry, William Mackey, Jr."
61. Lyon Boston, "Memorial of Charles Anderson Boston," The Association of the Bar of the City of New York Yearbook, 1935 (New York: The Association of the Bar of the City of New York, 1935), 287-88
62. But Boston's prolific legal ethics commentary also reflects traces of xenophobia and antisemitism - quite common in legal ethics writing at the time - as when he decried "the ambitious and intellectual capacity of Oriental immigrants, with no apparent conception of English or Teutonic ideals," or complained that the practice of law in New York City was passing "into the hands of those, who, if their names are significant, are not schooled by previous environment in the high traditions of the English and American Bar." Charles A. Boston, "A Code of Legal Ethics," The Green Bag 20 (1908): 224, 228
63. Charles A. Boston, "The Recent Movement Toward the Realization of High Ideals in the Legal Profession," in Report of the Thirty-Fifth Annual Meeting of the American Bar Association (Baltimore: The Lord Baltimore Press, 1912), 761, 784
64. On the prevalence of antisemitism among the leaders of bar associations at the time, see John Austin Matzko, "The Early Years of the American Bar Association, 1878-1928" (Ph.D. diss., University of Virginia, 1984), 231, 234-46, 344-45, 449-50
65. Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976), 102-29
66. Indeed, as Jerold Auerbach has persuasively argued, a generalized xenophobia contributed to bar associations' motivations in adopting and enforcing legal ethics rules that prohibited advertising, client solicitation, and other techniques newcomers used to obtain legal business. See Auerbach, Unequal Justice, 43-130
67. In economic terms, these rules created "barriers to entry," which helped preserve law practice as a monopoly for privileged Americans belonging to the right social clubs. This perspective on legal ethics rules is best articulated by Richard Abel, "Why Does the ABA Promulgate Ethical Rules?" Texas Law Review 59 (1981): 639-88
68. Richard L. Abel, American Lawyers, 142-57
69. See Charles Boston, Address of Charles A. Boston, Esq. before New York County Lawyers' Association on the Proposed Code of Professional Ethics, October 6, 1910 (New York: Chambers Printing Co., 1910), 30
70. See "Brief History of the New York Society for Ethical Culture," Membership Handbook, New York Society for Ethical Culture, found at http://www.nysec.org/handbook.html, visited 18 Feb. 2001
71. Who Was Who in America, vol. 1, 1897-1942 (1942), s.v. "Powell, Wilson Marcy."
72. See Ross, J. E. Spingarn, 3
73. Arthur Spingarn, "The Jew as a Racial Minority," n.d., Arthur B. Spingarn Papers, Manuscript Division, Moorland-Spingarn Research Center, Howard University [hereafter A. Spingarn Papers-HU], Box 94-11, Folder 236
74. see also Hasia R. Diner, In the Almost Promised Land: American Jews and Blacks, 1915-1935 (Baltimore: Johns Hopkins University Press, 1995; Westport, Conn.: Greenwood Press, 1977), 119-33. The Spingarn brothers in a sense epitomize the historical alliance between African-American civil rights activists and progressive-minded Jews. Joel Spingam's life has been thoughtfully examined by his biographer, Joyce Ross, but unfortunately no such biography exists of Arthur Spingarn, a fascinating character in his own right
75. Dictionary of American Biography, ed. R. Schuyler, vol. 22, supp. 2 (New York: Charles Scribner's Sons, 1958), s.v. "Spingarn, Joel Elias"
76. National Cyclopaedia of American Biography, vol. 17 (1927), s.v. "Spingarn, Joel Elias"
77. Ross, J. E. Spingarn, 55, 59-60
78. Ross, J. E. Spingarn, 13-14
79. Who Was Who in America, vol. 5, 1969-1973 (1973). 683, s.v. "Spingarn, Arthur B."
80. An avid collector of literature and art, Arthur Spingarn enjoyed strong literary friendships with James Weldon Johnson and Walter White. He liberally provided free legal assistance to a number of Harlem Renaissance artists, theaters, and members of the NAACP national staff. See various items in A. Spingarn Papers-HU, Box 94-2. For examples of the continuing hold of the image of a "gentleman lawyer" on the imaginations of legal ethics scholars, see, e.g., Thomas L. Shaffer and Mary M. Shaffer, American Lawyers and Their Communities (Notre Dame: University of Notre Dame Press, 1991), 30-126
81. Anthony T. Kronman, The Lost Lawyers: Failing Ideals of the Legal Profession (Cambridge: Harvard University Press, 1993), 11-17
82. "Charles H. Studin," Saturday Review of Literature 33 (March 25, 1950): 21 (obituary)
83. Rudwick and Meier report that another African-American lawyer, Philip M. Thorne, who held a law degree from Yale University, also sat on the national legal committee for a short time in 1914. Rudwick and Meier, "Attorneys Black and White," 159 n. 22, 170 n. 104. Thorne agreed to handle local NAACP cases on a contingency basis, but his name does not appear on the official lists of committee members published in the NAACP Annual Reports
84. See Thurston v. Thurston, 136 N.Y.S. 340, 341 (1911)
85. Cunningham v. Platt, 144 N.Y.S. 51, 52, 82 Misc. 486 (1913)
86. Smith, Emancipation, 400, 421, 440 n. 291
87. The Booker T. Washington Papers, ed. Louis R. Harlan and Raymond W. Smock (Urbana: University of Illinois Press, 1980), 7: 139, 141
88. The Booker T. Washington Papers, 11: 29
89. The assault took place while Washington was waiting outside an apartment house in a neighborhood of dubious repute and caused great embarrassment to Washington, who had an otherwise unassailable personal reputation. Washington was further humiliated when his assailant was acquitted of assault charges despite strong evidence against him. For a comprehensive account of the incident, see Louis R. Harlan, Booker T. Washington: The Wizard of Tuskegee, 1901-1915 (New York: Oxford University Press, 1983), 379-404
90. Meier and Rudwick, "Attorneys Black and White," 159 n. 22 (citing New York Age, 11 September 1911)
91. Several other lawyers on the advisory board of the New York committee, some African-American and some white, likewise were not transferred. These included African-American lawyer John William Smith, about whom I have found very little information, and Melville Cane, a well-known white copyright lawyer and poet who had graduated from Columbia University law school and was an ABCNY member. See Who Was Who in America, vol. 7, 1977-1981 (1981), s.v. "Cane, Melville H."
92. "Melville H. Cane, 100, a Lawyer Who Wrote Poetry and Essays," New York Times, 11 March 1980, D19 (obituary)
93. Booker T. Washington Papers, vol. 3, 455-56
94. Meier, Negro Thought in America, 181
95. See Meier, W. E. B. Du Bois, 102-3, 108
96. Stewart had helped to organize a campaign critical of Theodore Roosevelt's handling of a riot involving African-American soldiers in Brownsville, Texas, and opposed Roosevelt's successor-designate William Howard Taft, both stances that flew in the face of Booker T. Washington's accomodationist policies. For discussions of the difficult relationship between the NAACP and Booker T. Washington, see Lewis, W. E. B. Du Bois, 297-342
97. and August Meier, "Booker T. Washington and the Rise of the NAACP," in Along the Color Line, 75-93
98. Gilchrist Stewart to Joel Spingarn, 1 December 1913, J. Spingarn Papers, Box 95-10, Folder 427
99. James Cobb to Arthur Spingarn, 14 June 1922, ibid
100. "The NAACP," The Crisis 3 (February 1912): 159
101. In even more lively direct action, Arthur Spingarn reported visiting pubs in mixed-race groups and banging glasses loudly on the tables to demand service if it was denied. See "Arthur Spingam of N. A. A. C. P. Is Dead," New York Times, 2 December 1971, 51, col. 1
102. Joel E. Spingarn to Arthur B. Spingarn, 16 December 1914, A. Spingarn Papers-LOC, Box 1, Folder "Joel Spingarn - to and from Arthur Spingarn, 1912-18."
103. Joel E. Spingarn to Arthur B. Spingarn, 23 March 1915
104. Joel Spingarn to Arthur B. Spingarn, 31 December 1914, A. Spingarn Papers-LOC, Box 1, Folder "Joel Spingarn - to and from others with notes to Arthur Spingarn, 1912-38."
105. 238 U.S. 347 (1915)
106. For further biographical information on Storey, see Susan Carle, "From Buchanan to Button."
107. Arthur Spingarn to H. Williamson, 18 February 1916, A. Spingarn Papers-LOC, Box 5, Folder "1916."
108. Mary W. Ovington to Arthur B. Spingarn, 2 April 1912, ibid., Box 6, Folder "April-Dec. 1921."
109. Minutes of Annual Meeting, 3 January 1916, NAACP Papers Microfilm Edition, Pt. 1, Reel 1, Frame 438
110. William Pickens, Speech to Association of Negro Press, 23 January 1935, A. Spingarn papers-HU, Box 94-6, Folder 135
111. Minutes of the Meeting of the Board of Directors, 7 October 1913, NAACP Papers Microfilm Edition, Pt. I, Reel 1, Frame 216
112. National Cyclopaedia of American Biography (1885-1928), vol. 22 (1932), 156
113. Minutes of the Meeting of the Board of Directors, 6 January 1914, ibid., Frame 261
114. See, e.g., May C. Nerney to Arthur S. Spingarn, 12 October 1913, A. Spingarn Papers-LOC, Box 5, Folder "1912-1913" (asking Arthur Spingarn to speak on legal work for "mass meeting" of newly organized branch)
115. Joel E. Spingarn to Arthur S. Spingarn, 21 January 1916, J. Spingarn Papers, Box 95-14, Folder 542 (asking his brother to fill in for him at an out-of-town appearance and further warning him to be "careful what you say in writing" because of "ticklish work" ahead)
116. Arthur Spingarn to May Childs Nerney, 13 June 1914, A. Spingarn Papers-LOC, Box 5, Folder "1914."
117. 235 U.S. 151 (1914)
118. Arthur Spingarn to Ethelbert T. Barbour, 26 January 1915, A. Spingarn Papers-LOC, Box 5, Folder "1915."
119. Moorfield Storey to May Childs Nemey, 15 February 1915, A. Spingarn Papers-LOC, Box 5. For more on Storey and his representation of the NAACP, see Carle, "From Buchanan to Button."
120. See Meier and Rudwick, "Attorneys Black and White," 135-36, 164 n. 34
121. see also Smith, Emancipation, 536 n. 234 (further discussing criticisms of McCabe's lawyers)
122. Schmidt has argued that McCabe provided the best results possible, because the decision most likely would have come out the other way if the Court had been required to concentrate on the merits. Benno C. Schmidt, Jr., "Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 1: The Heyday of Jim Crow," Columbia Law Review 82 (1982): 444, 485, 492-93
123. Part of the problem was the unavailability of declaratory judgment as a form of relief prior to passage of the Declaratory Judgment Act in 1934. See Donald L. Doernberg and Michael B. Mushlin, "The Trojan Horse: How the Declaratory Judgment Act Created a Cause of Action and Expanded Federal Jurisdiction While the Supreme Court Wasn't Looking," UCLA Law Review 36 (1989): 529, 547-61 (describing Supreme Court's rigid application of case-or-controversy requirements prior to the act's passage)
124. 245 U.S. 60 (1917)
125. see generally Charles J. McClain, In Search of Equality: The Chinese Struggle against Discrimination in Nineteenth-Century America (Berkeley: University of California Press, 1994), 223-33
126. For biographical information on Hawkins, see Smith, Emancipation, 38, 146-47, 179-81 nn. 181, 184, 193, 199
127. This case was Clark v. The Maryland Institute for the Promotion of the Mechanic Arts, 87 Md. 643, 41 A. 126 (1898)
128. The U.S. Supreme Court accepted this theory in 1961 in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)
129. 121 Md. 534, 88 A. 546 (1913)
130. See W. Ashbie Hawkins, "A Year of Segregation in Baltimore," The Crisis 3 (November 1911): 27-30; Minutes of Meeting of NAACP Board of Directors, 7 October 1913 (reporting on Hawkins's plans to file a "test case" with help from the national office)
131. Gurry, 121 Md. 534, 88 A. 546, 553 (distinguishing Plessy and invalidating segregation ordinance on grounds that it imposed too great a burden on individuals' property rights)
132. Charles Boston served as a consultant to Hawkins in the appeal in this case. See May C. Nerney to Arthur Spingarn, 2 July 1915, A. Spingarn Papers-LOC, Box 5, Folder "July-Dec. 1915."
133. A final case resolved yet another challenge following the U.S. Supreme Court's decision in Buchanan v. Warley. See Jackson v. State, 123 Md. 311, 103 A. 910 (1918)
134. George C. Wright, "The NAACP and Residential Segregation in Louisville, Kentucky, 1914-1917," Register of the Kentucky Historical Society 78 (1980): 46-54
135. Wright, "The NAACP and Residential Segregation," 47 n. 16
136. Buchanan, 245 U.S. at 80-82
137. See Brief for Plaintiff in Error on Rehearing, Buchanan v. Warley, 245 U.S. 60 (1917) (No. 231)
138. This document is duplicated in Schmidt, "Principle and Prejudice," 512
139. Scholars have traced how residential segregationists simply switched tactics, channeling their energies into "private law" restrictive covenant strategies. See, e.g., Clement E. Vose, Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases (Berkeley: University of California Press, 1959)
140. But Benno Schmidt and others have argued that state-imposed residential apartheid might have gained far more momentum without the check imposed by Buchanan v. Warley. See Schmidt, "Principle and Prejudice," 456, 517-23
141. William Fischel, "Why Judicial Reversal of Apartheid Made a Difference," Vanderbilt Law Review 51 (1998): 975-91
142. A provocative treatment of the significance of Buchanan for the Court's civil rights jurisprudence is David E. Bernstein, "Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective," Vanderbilt Law Review 51 (1998): 797-879. Bernstein argues that application of individual-rights based Lochner-era jurisprudence led to victory in Buchanan. Bernstein compiles the Progressive-era commentary, inspired by sociological jurisprudence, that argued that cities' exercise of the police power in enacting segregation ordinances should be upheld. Bernstein exaggerates his point beyond what supporting evidence will allow - master sociological jurist Brandeis voted with the Buchanan majority, for example - but he is certainly correct in pointing out that sociological jurisprudence did not have a leg up on traditional rights analysis on civil rights questions
143. NAACP Annual Meeting, 19 December 1914, NAACP Papers Microfilm Edition, Pt. I, Reel 1, Frame 340
144. Meier and Rudwick, "Attorneys Black and White," 148-56
145. For general background on the 1908 canons, see Susan Carle, "Lawyers' Duty to Do Justice: A New Look at the History of the 1908 Canons," Law & Social Inquiry 24 (1999): 1, 6-9
146. See generally George Martin, Causes and Conflicts: The Centennial History of the Association of the Bar of the City of New York, 1870-1970 (1970; reprint, New York: Fordham University Press, 1997)
147. Michael J. Powell, From Patrician to Professional Elite: The Transformation of the New York City Bar Association (New York: Russell Sage Foundation, 1988)
148. Alden Chester, Courts and Lawyers of New York: A History, 1609-1925, vol. 3 (New York: American Historical Society, 1925)
149. Boston, "The Recent Movement Towards the Realization of High Ideals in the Legal Profession," 770-71
150. On the process by which the ABCNY became the primary enforcer of legal ethics rules in New York City, see Martin, Causes and Conflicts, 352-61
151. See Addresses Delivered February 17th, 1920, and Historical Sketch Prepared to Commemorate the Semi-Centenary of the Association of the Bar of the City of New York (New York: Association of the Bar of the City of New York, 1920), 22-23, 74-75
152. Powell, From Patrician to Professional Elite, 20-21
153. See Boston, Address of Charles A. Boston, Esq., 63, 69-83 (proposing draft legislation to establish new legal ethics disciplinary boards)
154. Charles Boston explained that, as "the younger and poorer of the two associations," lacking "the resources for vigorous prosecution," the NYCLA decided to turn "its attention largely to the ethical education of the Bar." Charles A. Boston, Practical Activities in Legal Ethics: An Address before the Law Association of Philadelphia, November 14, 1913 (Philadelphia: The Law Association of Philadelphia, 1913), 5
155. reprinted in Opinions of the Committee on Professional Ethics and Grievances with the Canons of Professional Ethics Annotated and the Canons of Judicial Ethics Annotated (Chicago: American Bar Association, 1957), 25
156. see also Max Radin, "Maintenance by Champerty," California Law Review 24 (1935): 48-78
157. See generally Radin, "Maintenance by Champerty."
158. Prosecuting ambulance chasing was a major preoccupation of the New York bar associations in the period between 1900 and 1920, though the number of such cases remains unclear. Randolph E. Bergstrom, Courting Danger: Injury and Law in New York City, 1870-1910 (Ithaca: Cornell University Press, 1993), 93
159. More reliable figures start with the late 1920s. In 1928, seventy-four lawyers were prosecuted for ambulance chasing, as the result of a special report into the practice filed with the New York courts. See Sidney Handler, The Results of the Ambulance Chasing Disbarment Proceedings in the Appellate Division, First Department (New York, n.d.) (listing cases and dispositions)
160. See In re Neuman, 255 N.Y.S. 438, 169 A.D. 638 (1915)
161. Neuman subsequently resigned from the bar after being charged with ambulance chasing as a result of the 1928 bar investigation mentioned in the footnote above. See Handler, Results of Ambulance Chasing Disbarment Proceedings, 5
162. New York County Lawyers' Association Opinion [hereinafter NYCLA Op.] No. 50 (1914), in Opinions of the Committees on Professional Ethics of the Association of the Bar of the City of New York and the New York County Lawyers' Association (New York: Columbia University Press, 1956), 540
163. a capper is "a decoy or lure for purpose of swindling." Black's Law Dictionary, 6th ed., s.vv. "runner," "capper."
164. See Carle, "Lawyers' Duty to Do Justice," 10-16
165. For a general analysis of the American bar's "turf wars" against "unauthorized practice of law" in response to encroachments by nonlawyers on lawyers' practice monopolies, see Abel, American Lawyers, 112-26
166. reprinted in Opinions of the Committee on Professional Ethics and Grievances, 25
167. There is no concrete evidence of Boston's views about these additions to the canons, which seem to contravene his earlier stated attitudes about advertising and organizational representation. It is possible that the committee simply overrode his views, but the 280-page treatise Boston wrote to accompany the proposed additions shows no sign that he disagreed with the committee's positions. See American Bar Association, Special Committee on Supplementing Canons of Professional Ethics, Annotated Canons (Baltimore: Lord Baltimore Press, 1926)
168. It is thus more likely that by the mid-1920s Boston's outlooks had become more conservative, in keeping with the general tenor of the legal profession and the nation as a whole. It is also likely that Boston allowed himself to be influenced by his peers on the ABA committee. The NYCLA had been a relatively forwardminded organization, but the ABA was staunchly conservative. See Matzko, "The Early Years of the American Bar Association," 435-94
169. For more on the transition from the NAACP's early history to Button, see Carle, "From Buchanan to Button."
170. Abel, "Why Does the ABA Promulgate Ethical Rules?"
171. For classic literature examining the world view of Progressive Era reformers in this respect, see Arthur S. Link and Richard L. McCormick, Progressivism (Arlington Heights, Ill.: Harlan Davidson, 1983)
172. Daniel Rodgers, "In Search of Progressivism," Reviews in American History 10 (1982): 113
173. See also Clyde Spillenger, "Elusive Advocate: Reconsidering Brandeis As People's Lawyer," Yale Law Journal 105 (1996): 1445, 1512 (discussing "characteristic Progressive confidence in defining the public good" and the connection Brandeis drew between public interest work and not accepting fees)
174. Carle, "Lawyers' Duty to Do Justice," 28 (discussing optimism in finding the "right" answers to legal disputes of the drafters of the first national model legal ethics canons)
175. For a study analyzing the transition from a universalistic, rights-based to a pluralistic, representational conception of test case litigation in labor law, see Daniel R. Ernst, Lawyers against Labor: From Individual Rights to Corporate Liberalism (Urbana: University of Illinois Press, 1995)
176. See In re Neuman, 255 N.Y. 438
177. The foundational article is David Wilkins, "Who Should Regulate Lawyers?" Harvard Law Review 105 (1992): 801-87
178. The application of new legal process methodologies to legal ethics scholarship is further explored in "Special Issue: Legal Process Scholarship and the Regulation of Lawyers," Fordham Law Review 65 (1996): 33-492
179. The general approach of new legal process analysis is described in Edward L. Rubin, "The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions," Harvard Law Review 109 (1996): 1393-1438
180. see also In re Primus, 436 U.S. 412 (1978) (holding that ACLU lawyer could not be prosecuted for solicitation)