|National Association for the Advancement of Colored People v. Button
202 Va. 142, 116 S.E.2d 55, reversed.
[ Brennan ]
[ Douglas ]
[ White ]
[ Harlan ]
National Association for the Advancement of Colored People v. Button
CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case originated in companion suits by the National Association for the Advancement of Colored People, Inc. (NAACP), and the NAACP Legal Defense and Educational Fund, Inc. (Defense Fund), brought in 1957 in the United States District Court for the Eastern District of Virginia. The suits sought to restrain the enforcement of Chapters 31, 32, 33, 35 and 36 of the Virginia Acts of Assembly, 1956 Extra Session, on the ground that the [p418] statutes, as applied to the activities of the plaintiffs, violated the Fourteenth Amendment. A three-judge court convened pursuant to 28 U.S.C. § 2281 after hearing evidence and making factfindings, struck down Chapters 31, 32 and 35 but abstained from passing upon the validity of Chapters 33 and 36 pending an authoritative interpretation of these statutes by the Virginia courts. [n1] The complainants thereupon petitioned in the Circuit Court of the City of Richmond to declare Chapters 33 and 36 inapplicable to their activities, or, if applicable, unconstitutional. The record in the Circuit Court was that made before the three-judge court supplemented by additional evidence. The Circuit Court held the chapters to be both applicable and constitutional. The holding was sustained by the Virginia Supreme Court of Appeals as to Chapter 33, but reversed as to Chapter 36, which was held unconstitutional under both state and federal law. [n2] Thereupon, the Defense Fund returned to the Federal District Court, where its case is presently pending, while the NAACP filed the instant petition. We granted certiorari. 365 U.S. 842. [n3] We heard argument in the 1961 Term, [p419] and ordered reargument this Term. 369 U.S. 833. Since no cross-petition was filed to review the Supreme Court of Appeals' disposition of Chapter 36, the only issue before us is the constitutionality of Chapter 33 as applied to the activities of the NAACP.
There is no substantial dispute as to the facts; the dispute centers about the constitutionality under the Fourteenth Amendment of Chapter 33, as construed and applied by the Virginia Supreme Court of Appeals to include NAACP's activities within the statute's ban against "the improper solicitation of any legal or professional business."
The NAACP was formed in 1909 and incorporated under New York law as a nonprofit membership corporation in 1911. It maintains its headquarters in New York, and presently has some 1,000 active unincorporated branches throughout the Nation. The corporation is licensed to do business in Virginia, and has 89 branches there. The Virginia branches are organized into the Virginia State Conference of NAACP Branches (the Conference), an unincorporated association, which, in 1957, had some 13,500 members. The activities of the Conference are financed jointly by the national organization and the local branches from contributions and membership dues. NAACP policy, binding upon local branches and conferences, is set by the annual national convention.
The basic aims and purposes of NAACP are to secure the elimination of all racial barriers which deprive Negro citizens of the privileges and burdens of equal citizenship rights in the United States. To this end, the Association engages in extensive educational and lobbying activities. It also devotes much of its funds and energies to an extensive [p420] program of assisting certain kinds of litigation on behalf of its declared purposes. For more than 10 years, the Virginia Conference has concentrated upon financing litigation aimed at ending racial segregation in the public schools of the Commonwealth.
The Conference ordinarily will finance only cases in which the assisted litigant retains an NAACP staff lawyer to represent him. [n4] The Conference maintains a legal staff of 15 attorneys, all of whom are Negroes and members of the NAACP. The staff is elected at the Conference's annual convention. Each legal staff member must agree to abide by the policies of the NAACP, which, insofar as they pertain to professional services, limit the kinds of litigation which the NAACP will assist. Thus, the NAACP will not underwrite ordinary damages actions, criminal actions in which the defendant raises no question of possible racial discrimination, or suits in which the plaintiff seeks separate but equal, rather than fully desegregated, public school facilities. The staff decides whether a litigant, who may or may not be an NAACP member, is entitled to NAACP assistance. The Conference defrays all expenses of litigation in an assisted case, and usually, although not always, pays each lawyer on the case a per diem fee not to exceed $60, plus out-of-pocket expenses. The assisted litigant receives no money from the Conference or the staff lawyers. The staff member may not accept, from the litigant or any other source, any other compensation for his services in an NAACP-assisted case. None of the staff receives a salary or retainer from the NAACP; the per diem fee is paid only for professional services in a particular case. This per diem payment is [p421] smaller than the compensation ordinarily received for equivalent private professional work. The actual conduct of assisted litigation is under the control of the attorney, although the NAACP continues to be concerned that the outcome of the lawsuit should be consistent with NAACP's policies already described. A client is free at any time to withdraw from an action.
The members of the legal staff of the Virginia Conference and other NAACP or Defense Fund lawyers called in by the staff to assist are drawn into litigation in various ways. One is for an aggrieved Negro to apply directly to the Conference or the legal staff for assistance. His application is referred to the Chairman of the legal staff. The Chairman, with the concurrence of the President of the Conference, is authorized to agree to give legal assistance in an appropriate case. In litigation involving public school segregation, the procedure tends to be different. Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting authorizing him, and other NAACP or Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation. On occasion, blank forms have been signed by litigants, upon the understanding that a member or members of the legal staff, with or without assistance from other NAACP lawyers, or from the Defense Fund, would handle the case. It is usual, after obtaining authorizations, for the staff lawyer to bring into the case the other staff members in the area where suit is to be brought, and sometimes to bring in lawyers from the national organization or the Defense Fund. [n5] In effect, then, the prospective [p422] litigant retains not so much a particular attorney as the "firm" of NAACP and Defense Fund lawyers, which has a corporate reputation for expertness in presenting and arguing the difficult questions of law that frequently arise in civil rights litigation.
These meetings are sometimes prompted by letters and bulletins from the Conference urging active steps to fight segregation. The Conference has on occasion distributed to the local branches petitions for desegregation to be signed by parents and filed with local school boards, and advised branch officials to obtain, as petitioners, persons willing to "go all the way" in any possible litigation that may ensue. While the Conference in these ways encourages the bringing of lawsuits, the plaintiffs in particular actions, so far as appears, make their own decisions to become such. [n6] [p423]
Statutory regulation of unethical and nonprofessional conduct by attorneys has been in force in Virginia since 1849. These provisions outlaw, inter alia, solicitation of legal business in the form of "running" or "capping." Prior to 1956, however, no attempt was made to proscribe under such regulations the activities of the NAACP, which had been carried on openly for many years in substantially the manner described. In 1956, however, the legislature amended, by the addition of Chapter 33, the provisions of the Virginia Code forbidding solicitation of legal business by a "runner" or "capper" to include, in the definition of "runner" or "capper," an agent for an individual or organization which retains a lawyer in connection with an action to which it is not a party and in which it has no pecuniary right or liability. [n7] [p424] The Virginia Supreme Court of Appeals held that the chapter's purpose "was to strengthen the existing statutes to further control the evils of solicitation of legal business. . . ." 202 Va. at 154, 116 S.E.2d at 65. The [p425] court held that the activities of NAACP, the Virginia Conference, the Defense Fund, and the lawyers furnished by them, fell within, and could constitutionally be proscribed by, the chapter's expanded definition of improper solicitation of legal business, and also violated Canons 35 and 47 of the American Bar Association's Canons of Professional Ethics, which the court had [p426] adopted in 1938. [n8] Specifically, the court held that, under the expanded definition, such activities on the part of NAACP, the Virginia Conference, and the Defense Fund constituted
fomenting and soliciting legal business in which they are not parties and have no pecuniary right or liability, and which they channel to the enrichment of certain lawyers employed by them, at no cost to the litigants and over which the litigants have no control.
A jurisdictional question must first be resolved: whether the judgment below was "final" within the meaning of 28 U.S.C. § 1257. The three-judge Federal District Court retained jurisdiction of this case while an authoritative construction of Chapters 33 and 36 was being sought in the Virginia courts. Cf. Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 173. The question of our jurisdiction arises because, when the case was last here, we observed that such abstention to secure state court interpretation "does not, of course, involve the abdication [by the District Court] of federal jurisdiction, but only the postponement of its exercise. . . ." Harrison v. NAACP, 360 U.S. 167, 177. We meant simply that the District Court had properly retained jurisdiction, since a party has the right to return to the District Court, after obtaining the authoritative state court construction for which the court abstained, for a final determination of his claim. Where, however, the party remitted to the state courts elects to seek a complete and final adjudication of his rights in the state courts, the District Court's reservation of jurisdiction is purely formal, and does not impair our jurisdiction to review directly an otherwise final state court judgment. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45. We think it clear that petitioner made such an [p428] election in the instant case, by seeking from the Richmond Circuit Court "a binding adjudication" of all its claims and a permanent injunction as well as declaratory relief, by making no reservation to the disposition of the entire case by the state courts, and by coming here directly on certiorari. Therefore, the judgment of the Virginia Supreme Court of Appeals was final, and the case is properly before us.
Petitioner challenges the decision of the Supreme Court of Appeals on many grounds. But we reach only one: that Chapter 33, as construed and applied, abridges the freedoms of the First Amendment, protected against state action by the Fourteenth. [n10] More specifically, petitioner claims that the chapter infringes the right of the NAACP and its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights. We think petitioner may assert this right on its own behalf, because, though a corporation, it is directly engaged in those activities, claimed to be constitutionally protected, which the statute would curtail. Cf. Grosjean v. American Press Co., 297 U.S. 233. We also think petitioner has standing to assert the corresponding rights of its members. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458-460; Bates v. City of Little Rock, 361 U.S. 516, 523, n. 9; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296.
We reverse the judgment of the Virginia Supreme Court of Appeals. We hold that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and [p429] Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of Chapter 33 and the Canons of Professional Ethics. [n11]
We meet at the outset the contention that "solicitation" is wholly outside the area of freedoms protected by the First Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. Thomas v. Collins, 323 U.S. 516, 537; Herndon v. Lowry, 301 U.S. 242, 259-264. Cf. Cantwell v. Connecticut, 310 U.S. 296; Stromberg v. California, 283 U.S. 359, 369; Terminiello v. Chicago, 337 U.S. 1, 4. In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts. [n12] Just as it was true of the [p430] opponents of New Deal legislation during the 1930's, [n13] for example, no less is it true of the Negro minority today. And under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.
We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity. Thus, we have affirmed the right "to engage in association for the advancement of beliefs and ideas." NAACP v. Alabama, supra, at 460. We have deemed privileged, under certain circumstances, the efforts of a union official to organize workers. Thomas v. Collins,supra. We have said that the Sherman Act does not apply to certain concerted activities of railroads,
at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws,
because "such a construction of the Sherman Act would raise important constitutional questions," specifically, First Amendment questions. Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. [p431] 127, 138. And we have refused to countenance compelled disclosure of a person's political associations in language closely applicable to the instant case:
Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups. . . .
The NAACP is not a conventional political party, but the litigation it assists, while serving to vindicate the legal rights of members of the American Negro community, at the same time and perhaps more importantly, makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society. For such a group, association for litigation may be the most effective form of political association.
Our concern is with the impact of enforcement of Chapter 33 upon First Amendment freedoms. We start, of course, from the decree of the Supreme Court of Appeals. Although the action before it was one basically for declaratory relief, that court not only expounded the purpose and reach of the chapter, but held concretely that certain of petitioner's activities had, and certain others had not, [p432] violated the chapter. These activities had been explored in detail at the trial, and were spread out plainly on the record. We have no doubt that the opinion of the Supreme Court of Appeals in the instant case was intended as a full and authoritative construction of Chapter 33 as applied in a detailed factual context. That construction binds us. For us, the words of Virginia's highest court are the words of the statute. Hebert v. Louisiana, 272 U.S. 312, 317. We are not left to speculate at large upon the possible implications of bare statutory language.
But it does not follow that this Court now has only a clear-cut task to decide whether the activities of the petitioner deemed unlawful by the Supreme Court of Appeals are constitutionally privileged. If the line drawn by the decree between the permitted and prohibited activities of the NAACP, its members and lawyers is an ambiguous one, we will not presume that the statute curtails constitutionally protected activity as little as possible. For standards of permissible statutory vagueness are strict in the area of free expression. See Smith v. California, 361 U.S. 147, 151; Winters v. New York, 333 U.S. 507, 509-510, 517-518; Herndon v. Lowry, 301 U.S. 242; Stromberg v. California, 283 U.S. 359; United States v. C.I.O., 335 U.S. 106, 142 (Rutledge, J., concurring). Furthermore, the instant decree may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct. For, in appraising a statute's inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar. Thornhill v. Alabama, 310 U.S. 88, 97-98; Winters v. New York, supra, at 518-520. Cf. Staub v. City of Baxley, 355 U.S. 313. It makes no difference that the instant case was not a criminal prosecution, and not based on a refusal to comply with a licensing requirement. The [p433] objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. [n14] Cf. Marcus v. Search Warrant, 367 U.S. 717, 733. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, supra, at 151-154; Speiser v. Randall, 357 U.S. 513, 526. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U.S. 296, 311.
We read the decree of the Virginia Supreme Court of Appeals in the instant case as proscribing any arrangement by which prospective litigants are advised to seek the assistance of particular attorneys. No narrower reading is plausible. We cannot accept the reading suggested on behalf of the Attorney General of Virginia on the second oral argument that the Supreme Court of Appeals construed Chapter 33 as proscribing control only of the actual litigation by the NAACP after it is instituted. In the first place, upon a record devoid of any evidence of interference by the NAACP in the actual conduct of litigation, or neglect or harassment of clients, the court nevertheless held that petitioner, its members, agents and staff attorneys had practiced criminal solicitation. Thus, simple referral to or recommendation of a lawyer may be solicitation within the meaning of Chapter 33. In the second place, the decree does not seem to rest on the fact [p434] that the attorneys were organized as a staff and paid by petitioner. The decree expressly forbids solicitation on behalf of "any particular attorneys" in addition to attorneys retained or compensated by the NAACP. In the third place, although Chapter 33 purports to prohibit only solicitation by attorneys or their "agents," it defines agent broadly as anyone who "represents" another in his dealings with a third person. Since the statute appears to depart from the common law concept of the agency relationship, and since the Virginia court did not clarify the statutory definition, we cannot say that it will not be applied with the broad sweep which the statutory language imports.
We conclude that, under Chapter 33, as authoritatively construed by the Supreme Court of Appeals, a person who advises another that his legal rights have been infringed and refers him to a particular attorney or group of attorneys (for example, to the Virginia Conference's legal staff) for assistance has committed a crime, as has the attorney who knowingly renders assistance under such circumstances. There thus inheres in the statute the gravest danger of smothering all discussion looking to the eventual institution of litigation on behalf of the rights of members of an unpopular minority. Lawyers on the legal staff or even mere NAACP members or sympathizers would understandably hesitate, at an NAACP meeting or on any other occasion, to do what the decree purports to allow, namely, acquaint
persons with what they believe to be their legal rights and . . . [advise] them to assert their rights by commencing or further prosecuting a suit. . . .
For if the lawyers, members or sympathizers also appeared in or had any connection with any litigation supported with NAACP funds contributed under the provision of the decree by which the NAACP is not prohibited "from contributing money to persons to assist them in commencing or further prosecuting such [p435] suits," they plainly would risk (if lawyers) disbarment proceedings and, lawyers and nonlawyers alike, criminal prosecution for the offense of "solicitation," to which the Virginia court gave so broad and uncertain a meaning. It makes no difference whether such prosecutions or proceedings would actually be commenceed. It is enough that a vague and broad statute lends itself to selective enforcement against unpopular causes. We cannot close our eyes to the fact that the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community of Virginia; [n15] litigation assisted by the NAACP has been bitterly fought. [n16] In such circumstances, a statute [p436] broadly curtailing group activity leading to litigation may easily become a weapon of oppression, however evenhanded its terms appear. Its mere existence could well freeze out of existence all such activity on behalf of the civil rights of Negro citizens. [p437]
It is apparent, therefore, that Chapter 33, as construed, limits First Amendment freedoms. As this Court said in Thomas v. Collins, 323 U.S. 516, 537, "‘Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts." Thomas was convicted for delivering a speech in connection with an impending union election under National Labor Relations Board auspices, without having first registered as a "labor organizer." He urged workers to exercise their rights under the National Labor Relations Act and join the union he represented. This Court held that the registration requirement as applied to his activities was constitutionally invalid. In the instant case, members of the NAACP urged Negroes aggrieved by the allegedly unconstitutional segregation of public schools in Virginia to exercise their legal rights and to retain members of the Association's legal staff. Like Thomas, the Association and its members were advocating lawful means of vindicating legal rights.
We hold that Chapter 33, as construed, violates the Fourteenth Amendment by unduly inhibiting protected freedoms of expression and association. In so holding, we reject two further contentions of respondents. The first is that the Virginia Supreme Court of Appeals has guaranteed free expression by expressly confirming petitioner's right to continue its advocacy of civil rights litigation. But in light of the whole decree of the court, the guarantee is of purely speculative value. As construed by the Court, Chapter 33, at least potentially, prohibits every [p438] cooperative activity that would make advocacy of litigation meaningful. If there is an internal tension between proscription and protection in the statute, we cannot assume that, in its subsequent enforcement, ambiguities will be resolved in favor of adequate protection of First Amendment rights. Broad prophylactic rules in the area of free expression are suspect. See, e.g., Near v. Minnesota, 283 U.S. 697"]283 U.S. 697; 283 U.S. 697; Shelton v. Tucker, 364 U.S. 479; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293. Cf. Schneider v. Irvington, 308 U.S. 147, 162. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.
The second contention is that Virginia has a subordinating interest in the regulation of the legal profession, embodied in Chapter 33, which justifies limiting petitioner's First Amendment rights. Specifically, Virginia contends that the NAACP's activities in furtherance of litigation, being "improper solicitation" under the state statute, fall within the traditional purview of state regulation of professional conduct. However, the State's attempt to equate the activities of the NAACP and its lawyers with common law barratry, maintenance and champerty, [n17] and to outlaw them accordingly, cannot obscure the serious encroachment worked by Chapter 33 upon protected freedoms of expression. The decisions of this Court have consistently held that only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms. Thus, it is no answer to the constitutional claims asserted by petitioner to say, as the Virginia Supreme Court of Appeals has said, that the [p439] purpose of these regulations was merely to insure high professional standards and not to curtail free expression. For a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights. See Schware v. Board of Bar Examiners, 353 U.S. 232; Konigsberg v. State Bar, 353 U.S. 252. Cf. In re Sawyer, 360 U.S. 622. In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, we said,
In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action.
Later, in Bates v. Little Rock, 361 U.S. 516, 524, we said,
[w]here there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.
Most recently, in Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 297, we reaffirmed this principle:
. . . regulatory measures . . . no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights.
However valid may be Virginia's interest in regulating the traditionally illegal practices of barratry, maintenance and champerty, that interest does not justify the prohibition of the NAACP activities disclosed by this record. Malicious intent was of the essence of the common law offenses of fomenting or stirring up litigation. [n18] And whatever may be or may have been true of suits against [p440] government in other countries, the exercise in our own, as in this case, of First Amendment rights to enforce constitutional rights through litigation, as a matter of law, cannot be deemed malicious. Even more modern, subtler regulations of unprofessional conduct or interference with professional relations, not involving malice, would not touch the activities at bar; regulations which reflect hostility to stirring up litigation have been aimed chiefly at those who urge recourse to the courts for private gain, serving no public interest. [n19] Hostility still exists to stirring [p441] up private litigation where it promotes the use of legal machinery to oppress: as, for example, to so discord in a family; [n20] to expose infirmities in land titles, as by hunting up claims of adverse possession; [n21] to harass large companies through a multiplicity of small claims; [n22] or to oppress debtors as by seeking out unsatisfied judgments. [n23] For a member of the bar to participate, directly or through intermediaries, in such misuses of the legal process is conduct traditionally condemned as injurious to the public. And beyond this, for a lawyer to attempt to reap gain by urging another to engage in private litigation has also been condemned: that seems to be the import of Canon 28, which the Virginia Supreme Court of Appeals has adopted as one of its Rules. [n24]
Objection to the intervention of a lay intermediary, who may control litigation or otherwise interfere with the rendering of legal services in a confidential relationship also derives from the element of pecuniary gain. Fearful of dangers thought to arise from that element, the courts of several States have sustained regulations aimed [p442] at these activities. [n25] We intimate no view one way or the other as to the merits of those decisions with respect to the particular arrangements against which they are directed. It is enough that the superficial resemblance in form between those arrangements and that at bar cannot obscure the vital fact that here the entire arrangement employs constitutionally privileged means of expression to secure constitutionally guaranteed civil rights. [n26] There [p443] has been no showing of a serious danger here of professionally reprehensible conflicts of interest which rules against solicitation frequently seek to prevent. This is so partly because no monetary stakes are involved, and so there is no danger that the attorney will desert or subvert the paramount interests of his client to enrich himself or an outside sponsor. And the aims and interests of NAACP have not been shown to conflict with those of its members and nonmember Negro litigants; compare NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459, where we said:
[the NAACP] and its members are in every practical sense identical. The Association, which provides in its constitution that "[a]ny person who is in accordance with [its] principles and policies . . ." may become a member, is but the medium through which its individual members seek to make more effective the expression of their own views.
See also Harrison v. NAACP, 360 U.S. 167, 177.
Resort to the courts to seek vindication of constitutional rights is a different matter from the oppressive, malicious, or avaricious use of the legal process for purely private gain. Lawsuits attacking racial discrimination, at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers; [n27] the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation. There has been neither claim nor [p444] proof that any assisted Negro litigants have desired, but have been prevented from retaining, the services of other counsel. We realize that an NAACP lawyer must derive personal satisfaction from participation in litigation on behalf of Negro rights, else he would hardly be inclined to participate at the risk of financial sacrifice. But this would not seem to be the kind of interest or motive which induces criminal conduct.
We conclude that, although the petitioner has amply shown that its activities fall within the First Amendment's protections, the State has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from petitioner's activities, which can justify the broad prohibitions which it has imposed. Nothing that this record shows as to the nature and purpose of NAACP activities permits an inference of any injurious intervention in or control of litigation which would constitutionally authorize the application of Chapter 33 to those activities. A fortiori, nothing in this record justifies the breadth and vagueness of the Virginia Supreme Court of Appeals' decree.
A final observation is in order. Because our disposition is rested on the First Amendment as absorbed in the Fourteenth, we do not reach the considerations of race or racial discrimination which are the predicate of petitioner's challenge to the statute under the Equal Protection Clause. That the petitioner happens to be engaged in activities of expression and association on behalf of the rights of Negro children to equal opportunity is constitutionally irrelevant to the ground of our decision. The course of our decisions in the First Amendment area makes plain that its protections would apply as fully to those who would arouse our society against the objectives of the petitioner. See, e.g., Near v. Minnesota, 283 U.S. 697; Terminiello v. Chicago, 337 U.S. 1; Kunz v. New York, 340 U.S. 290. For the Constitution protects expression [p445] and association without regard to the race, creed, or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity, or social utility of the ideas and beliefs which are offered.
1. NAACP v. Patty, 159 F.Supp. 503 (D.C.E.D.Va.1958). On direct appeal under 28 U.S.C. § 1253 from the judgment striking down Chapters 31, 32 and 35, this Court reversed, remanding with instructions to permit the complainants to seek an authoritative interpretation of the statutes in the Virginia courts. Harrison v. NAACP, 360 U.S. 167. In ensuing litigation, the Circuit Court of the City of Richmond held most of the provisions of the three chapters unconstitutional. NAACP v. Harrison, Chancery causes No. B-2879 and No. B-2880, Aug. 31, 1962.
2. NAACP v. Harrison, 202 Va. 142, 116 S.E.2d 55 (1960). Chapter 36, which is codified in § 18.1-394 et seq., Code of Virginia (1960 Repl. Vol.), prohibits the advocacy of suits against the Commonwealth and the giving of any assistance, financial or otherwise, to such suits.
3. Certiorari was first granted sub nom. NAACP v. Gray. The litigation began sub nom. NAACP v. Patty, Attorney General of Virginia. During the course of the litigation, the names of successive holders of that office have been substituted as party respondent. See Supreme Court Rule 4, par. 3, as amended. 366 U.S. 979.
4. However, the record contains two instances where Negro litigants had retained attorneys, not on the legal staff, prior to seeking financial assistance from the Conference. The Conference rendered substantial financial assistance in both cases. In one case, the Conference paid the attorney's fee.
5. The Defense Fund, which is not involved in the present phase of the litigation, is a companion body to the NAACP. It is also a nonprofit New York corporation licensed to do business in Virginia, and has the same general purposes and policies as the NAACP. The Fund maintains a legal staff in New York City and retains regional counsel elsewhere, one of whom is in Virginia. Social scientists, law professors and law students throughout the country donate their services to the Fund without compensation. When requested by the NAACP, the Defense Fund provides assistance in the form of legal research and counsel.
6. Seven persons who were or had been plaintiffs in Virginia public school suits did testify that they were unaware of their status as plaintiffs and ignorant of the nature and purpose of the suits to which they were parties. It does not appear, however, that the NAACP had been responsible for their involvement in litigation. These plaintiffs testified that they had attended meetings of parents without grasping the meaning of the discussions, had signed authorizations either without reading or without understanding them, and thereafter had paid no heed to the frequent meetings of parents called to keep them abreast of legal developments. They also testified that they were not accustomed to read newspapers or listen to the radio. Thus, they seem to have had little grasp of what was going on in the communities. Two of these seven plaintiffs had been persuaded to sign authorizations by their own children, who had picked up forms at NAACP meetings. Five were plaintiffs in the Prince Edward County school litigation, in which 186 persons were joined as plaintiffs. See NAACP v. Patty, 159 F.Supp. 503, 517 (D.C.E.D.Va.1958).
7. Code of Virginia, 1950, §§ 54-74, 54-78, and 54-79, as amended by Acts of 1956, Ex.Sess., c. 33 (Repl. Vol.1958), read in pertinent part as follows (amendments in italics):
§ 54-74. . . . If the Supreme Court of Appeals, or any court of record of this State, observes, or if complaint, verified by affidavit, be made by any person to such court of any malpractice or of any unlawful or dishonest or unworthy or corrupt or unprofessional conduct on the part of any attorney, or that any person practicing law is not duly licensed to practice in this State, such court shall, if it deems the case a proper one for such action, issue a rule against such attorney or other person to show cause why his license to practice law shall not be revoked or suspended.
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Upon the hearing, if the defendant be found guilty by the court, his license to practice law in this State shall be revoked, or suspended for such time as the court may prescribe; provided, that the court, in lieu of revocation or suspension, may, in its discretion, reprimand such attorney.
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"Any malpractice, or any unlawful or dishonest or unworthy or corrupt or unprofessional conduct," as used in this section, shall be construed to include the improper solicitation of any legal or professional business or employment, either directly or indirectly, or the acceptance of employment, retainer, compensation or costs from any person, partnership, corporation, organization or association with knowledge that such person, partnership, corporation, organization or association has violated any provision of article 7 of this chapter [§§ 54-78 to 54-8.1], or the failure, without sufficient cause, within a reasonable time after demand, of any attorney at law, to pay over and deliver to the person entitled thereto, any money, security or other property, which has come into his hands as such attorney; provided, however, that nothing contained in this article shall be construed to in any way prohibit any attorney from accepting employment to defend any person, partnership, corporation, organization or association accused of violating the provisions of article 7 of this chapter.
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§ 578. . . .(1) A "runner" or "capper" is any person, corporation, partnership or association acting in any manner or in any capacity as an agent for an attorney at law within this State or for any person, partnership, corporation, organization or association which employs, retains or compensates any attorney at law in connection with any judicial proceeding in which such person, partnership, corporation, organization or association is not a party and in which it has no pecuniary right or liability, in the solicitation or procurement of business for such attorney at law * or for such person, partnership, corporation, organization or association in connection with any judicial proceedings for which such attorney or such person, partnership, corporation, organization or association is employed, retained or compensated.
The fact that any person, partnership, corporation, organization or association is a party to any judicial proceeding shall not authorize any runner or capper to solicit or procure business far such person, partnership, corporation, organization or association or any attorney at law employed, retained or compensated by such person, partnership, corporation, organization or association.
(2) An "agent" is one who represents another in dealing with a third person or persons.
§ 54-79. . . . It shall be unlawful for any person, corporation, partnership or association to act as a runner or capper * as defined in § 54-78 to solicit any business for * an attorney at law or such person., partnership, corporation, organization or association, in and about the State prisons, county jails, city jails, city prisons, or other places of detention of persons, city receiving hospitals, city and county receiving hospitals, county hospitals, police courts, * county courts, municipal courts, * courts of record, or in any public institution or in any public place or upon any public street or highway or in and about private hospitals, sanitariums or in and about any private institution or upon private property of any character whatsoever.
Code of Virginia, 1950, §§ 54-82, 54-83.1, as amended (Repl. Vol.1958), provide:
§ 54.82. Penalty for violation. -- Any person, corporation, partnership or association violating any of the provisions of this article shall be guilty of a misdemeanor, and shall be punishable by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment for not less than one month nor more than six months, or by both such fine and imprisonment. . . .
§ 54-83.1. Injunction against running, capping, soliciting and maintenance. -- The Commonwealth's attorney, or any person, firm or corporation against whom any claim for damage to property or damages for personal injuries or for death resulting therefrom, is or has been asserted, may maintain a suit in equity against any person who has solicited employment for himself or has induced another to solicit or encourage his employment, or against any person, firm, partnership or association which has acted for another in the capacity of a runner or capper or which has been stirring up litigation in such a way as to constitute maintenance whether such solicitation was successful or not, to enjoin and permanently restrain such person, his agents, representatives and principals from soliciting any such claims against any person, firm or corporation subsequent to the date of the injunction.
8. 171 Va. pp. 371ii-371iii, 371v (1938). Canon 35 reads in part as follows:
Intermediaries. -- The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and lawyer. A lawyer's responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A lawyer's relation to his client should be personal, and the responsibility should be direct to the client. Charitable societies rendering aid to the indigent are not deemed such intermediaries.
Canon 47 reads as follows:
Aiding the Unauthorized Practice of Law. -- No lawyer shall permit his professional services, or his name, to be used in aid of, or to make possible, the unauthorized practice of law by any lay agency, personal or corporate.
[T]he solicitation of legal business by the appellants, their officers, members, affiliates, voluntary workers and attorneys, as shown by the evidence, violates chapter 33 and the canons of legal ethics;
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. . . attorneys who accept employment by appellants to represent litigants in suits solicited by the appellants, or those associated with them, are violating chapter 33 and the canons of legal ethics;
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. . . appellants and those associated with them may not be prohibited from acquainting persons with what they believe to be their legal rights and advising them to assert their rights by commencing or further prosecuting a suit against the Commonwealth of Virginia, any department, agency or political subdivision thereof, or any person acting as an officer or employee of such, but in so advising persons to commence or further prosecute such suits the appellants, or those associated with them, shall not solicit legal business for their attorneys or any particular attorneys; and
(b) the appellants and those associated with them may not be prohibited. from contributing money to persons to assist them in commencing or further prosecuting such suits, which have not been solicited by the appellants or those associated with them, and channeled by them to their attorneys or any other attorneys.
202 Va. at 164 165, 116 S.E.2d at 72.
10. Petitioner also claims that Chapter 33, as construed, denies equal protection of the laws, and is so arbitrary and irrational as to deprive petitioner of property without due process of law.
11. It is unclear -- and immaterial -- whether the Virginia court's opinion is to be read as holding that NAACP's activities violated the Canons because they violated Chapter 33, or as reinforcing its holding that Chapter 33 was violated by finding an independent violation of the Canons. Our holding that petitioner's activities are constitutionally protected applies equally whatever the source of Virginia's attempted prohibition.
12. Murphy, The South Counterattacks: The Anti-NAACP Laws, 12 W.Pol.Q. 371 (1959). See Bentley, The Process of Government: A Study of Social Pressures (1908); Rosenblum, Law as a Political Instrument (1955); Peltason, Federal Courts in the Political Process (1955); Truman, The Governmental Process: Political Interests and Public Opinion (1955); Vose, The National Consumers' League and the Brandeis Brief, 1 Midw.J. of Pol.Sci. 267 (1957); Comment, Private Attorneys-General: Group Action in the Fight for Civil Liberties, 58 Yale L.J. 574 (1949).
13. Cf. Opinion 148, Committee on Professional Ethics and Grievances, American Bar Association (1935), ruling that the Liberty League's program of assisting litigation challenging New Deal legislation did not constitute unprofessional conduct.
14. Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. of Pa.L.Rev. 67, 75-76, 80-81, 96-104 (1960).
15. See NAACP v. Patty, 159 F.Supp. 503, 516-517 (D.C.E.D.Va.1958); Davis v. County School Board, 149 F.Supp. 431, 438-439 (D.C.E.D.Va.1957), rev'd on other grounds sub nom. Allen v. County School Board, 249 F.2d 462 (C.A.4th Cir.); Muse, Virginia's Massive Resistance (1961), passim.
16. See, e.g., County School Bd. v. Thompson, 240 F.2d 59, 64 (C.A.4th Cir.1956) (conduct of defendant termed a "clear manifestation of an attitude of intransigence . . ."); James v. Duckworth, 170 F.Supp. 342, 350 (D.C.E.D.Va.1959), aff'd, 267 F.2d 224 (C.A.4th Cir.); Allen v. County School Bd., 266 F.2d 507 (C.A.4th Cir.1959); Allen v. County School Bd., 198 F.Supp. 497, 502 (D.C.E.D.Va.1961). Most NAACP-assisted litigation in Virginia in recent years has been litigation challenging public school segregation. The sheer mass of such (and related) litigation is an indication of the intensity of the struggle: ALEXANDRIA: Jones v. School Bd., 179 F.Supp. 280 (D.C.E.D.Va.1959); Jones v. School Bd., 278 F.2d 72 (C.A.4th Cir.1960). ARLINGTON: County School Bd. v. Thompson, 240 F.2d159 (C.A.4th Cir.1956); Thompson v. County School Bd., 144 F.Supp. 239 (D.C.E.D.Va.1956); 159 F.Supp. 567 (D.C.E.D.Va.1957); 166 F.Supp. 529 (D.C.E.D. Va 1958); 252 F.2d 929 (C.A.4th Cir.1958); 2 Race Rel. 810 (D.C.E.D.Va.1957); 4 Race Rel. 609 (D.C.E.D.Va.1959); 4 Race Rel. 880 (D.C.E.D.Va.1959); Hamm v. School Bd. of Arlington Co., 263 F.2d 226 (C.A.4th Cir.1959); 264 F.2d 945 (C.A.4th Cir.1959). CHARLOTTESVILLE: School Bd. v. Allen, 240 F.2d 59 (C.A.4th Cir.1956); Allen v. School Bd., 1 Race Rel. 886 (D.C.W.D.Va.1956); 2 Race Rel. 986 (D.C.W.D.Va.1957); 3 Race Rel. 937 (D.C.W.D.Va.1958); 4 Race Rel. 881 (D.C.W.D.Va.1959); 263 F.2d 295 (C.A.4th Cir.1959); 203 F.Supp. 225 (D.C.W.D.Va.1961); Dodson v. School Bd., 289 F.2d 439 (C.A.4th Cir.1961); Dillard v. School Bd., 308 F.2d 920 (C.A.4th Cir.1962). FAIRFAX COUNTY: Blackwell v. Fairfax Co. School Bd., 5 Race Rel. 1056 (D.C.E.D.Va.1960). FLOYD COUNTY: Walker v. Floyd Co. School Bd., 5 Race Rel. 1060 (D.C.W.D.Va.1960); 5 Race Rel. 714 (D.C.W.D.Va.1960). GRAYSON COUNTY: Goins v. County School Bd., 186 F.Supp. 753 (D.C.W.D.Va.1960); 282 F.2d 343 (C.A.4th Cir.1960). NORFOLK: Beckett v. School Bd., 2 Race Rel. 337 (D.C.E.D.Va.1957); 148 F.Supp. 430 (D.C.E.D.Va.1957); 3 Race Rel. 942-964 (D.C.E.D.Va.1958); 260 F.2d 18 (C.A.4th Cir. 1958); 246 F.2d 325 (C.A.4th Cir.1957); 181 F.Supp. 870 (D.C.E.D.Va.1959); 185 F.Supp. 459 (D.C.E.D.Va.1959); Farley v. Turner, 281 F.2d 131 (C.A.4th Cir.1960); Hill v. School Bd., 282 F.2d 47:3 (C.A.4th Cir.1960); James v. Duckworth, 170 F.Supp. 342 (D.C.E.D.Va.1959); 267 F.2d 224 (C.A.4th Cir.1959); Adkinson v. School Bd. of Newport News, 3 Race Rel. 938 (D.C.E.D.Va.1958); Adkins v. School Bd. of Newport News, 148 F.Supp. 430 (D.C.E.D.Va.1957); 2 Race Rel. 334 (D.C.E.D.Va.1957); 246 F.2d 325 (C.A.4th Cir.1957); Harrison v. Day, 200 Va. 439, 106 S.E.2d 636 (1959); James v. Almond, 170 F.Supp. 331 (D.C.E.D.Va.1959). PRINCE EDWARD COUNTY: Davis v. School Bd. of Prince Edward Co., 347 U.S. 483; 349 U.S. 294; 1 Race Rel. 82 (D.C.E.D.Va.1955); 142 F.Supp. 616 (D.C.E.D.Va.1956); 149 F.Supp. 431 (D.C.E.D.Va.1957); Allen v. School Bd., 164 F.Supp. 786 (D.C.E.D.Va.1958); 249 F.2d 462 (C.A.4th Cir.1957); 266 F.2d 507 (C.A.4th Cir.1959); 6 Race Rel. 432 (D.C.E.D.Va.1961); 198 F.Supp. 497 (D.C.E.D.Va.1961); Southern School News, Aug.1962, p. 1. PULASKI COUNTY: Crisp v. Pulaski Co. School Bd., 5 Race Rel. 721 (D.C.W.D.Va.1960). RICHMOND: Calloway v. Farley, 2 Race Rel. 1121 (D.C.E.D.Va.1957); Warden v. Richmond School Bd., 3 Race Rel. 971 (D.C.E.D.Va.1958). WARREN COUNTY: Kilby v. County School Bd., 3 Race Rel. 97-973 (D.C.W.D.Va.1958); County School Bd. v. Kilby, 259 F.2d 497 (C .4th Cir.1958).
Despite this volume of litigation, only 1/2 of 1% of Virginia's Negro public school pupils attend school with whites. Southern School News, Sept.1962, p. 3.
17. See 4 Blackstone, Commentaries, 134-136. See generally Radin, Maintenance by Champerty, 24 Cal.L.Rev. 48 (1935).
18. See, e.g., Commonwealth v. McCulloch, 15 Mass. 227 (1818): Brown v. Beauchamp, 5 T.B.Mon. 413 (Ky. 1827); Perkins, Criminal Law, 449 454 (1957); Note, 3 Race Rel. 1257-1259 (1958).
The earliest regulation of solicitation of legal business in England was aimed at the practice whereby holders of claims to land conveyed them to great feudal lords, who used their power or influence to harass the titleholders. See Winfield, The History of Conspiracy and Abuse of Legal Procedure, 152 (1921).
19. See Comment: A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U. of Chi.L.Rev. 674 (1958). But truly nonpecuniary arrangements involving the solicitation of legal business have been frequently upheld. See In re Ades, 6 F.Supp. 467 (D.C.D. Md.1934) (lawyer's volunteering his services to a litigant, without being asked, held not unprofessional where "important issues" were at stake); Gunnels v. Atlanta Bar Assn., 191 Ga. 366, 12 S.E.2d 602 (1940) (arrangement whereby a local bar association publicly offered to represent, free of charge, persons victimized by usurers, upheld). Of particular pertinence to the instant case is Opinion 148, supra. note 13. In the 1930's, a National Lawyers Committee was formed under the auspices of the Liberty League. The Committee proposed (1) to prepare and disseminate through the public media of communications opinions on the constitutionality of state and federal legislation (it appears, particularly New Deal legislation); (2) to offer counsel, without fee or charge, to anyone financially unable to retain counsel who felt that such legislation was violating his constitutional rights. The ABA's Committee on Professional Ethics and Grievances upheld the arrangement. Opinion 148, Opinions of the Committee on Professional Ethics and Grievances, American Bar Association, 308-312 (1957); see Comment, 36 Col.L.Rev. 993.
Also, for example, the American Civil Liberties Union has for many years furnished counsel in many cases in many different parts of the country, without governmental interference. Although this intervention is mostly in the form of amicus curiae briefs, occasionally counsel employed by the Union appears directly on behalf of the litigant. See Comment, Private Attorneys-General: Group Action in the Fight for Civil Liberties, 58 Yale L.J. 574, 576 (1949); ACLU Report on Civil Liberties 1951-1953, pp. 9-10.
20. See Encouraging Divorce Litigation as Ground for Disbarment or Suspension, 9 A.L.R. 1500 (1920); "Heir-hunting" as Ground for Disciplinary Action Against Attorney, 171 A.L.R. 351, 352-355 (1947).
21. See Backus v. Byron, 4 Mich. 535, 551-552 (1857).
22. See Matter of Clark, 184 N.Y. 222, 77 N.E. 1 (1906); Gammons v. Johnson, 76 Minn. 76, 78 N.W. 1035 (1899).
23. See Petition of Hubbard, 267 S.W.2d 743 (Ky.Ct.App. 1954).
24. See 171 Va. p. xxix, following the American Bar Association's Canons of Professional Ethics, No. 28:
It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so. . . . It is disreputable . . . to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes. . . .
25. See People ex rel. Courtney v. Association of Real Estate Taxpayers, 354 Ill. 102, 187 N.E. 823 (1933) (Association to contest constitutionality of tax statutes in which parties and Association attorneys had large sums of money at stake); In the Matter of Maclub of America, Inc., 295 Mass. 5, 3 N.E.2d 272 (1936) (motorists' association recommended and paid the fees of lawyers to prosecute or defend claims on behalf of motorist members); see also People ex rel. Chicago Bar Assn. v. Chicago Motor Club, 362 Ill. 50, 199 N.E. 1 (1935). One aspect of the lay intermediary problem which involved the absence of evidence of palpable control or interference was an arrangement adopted by the Brotherhood of Railroad Trainmen in 1930 under which union members having claims under the Federal Employers' Liability Act were induced to retain lawyers selected by the Brotherhood and to make 25% contingent fee agreements with such lawyers. The arrangement was struck down by several state courts. To the courts which condemned the arrangement, it appeared in practical effect to confer a monopoly of FELA legal business upon lawyers chosen by the Brotherhood. These courts also saw it as tending to empower the Brotherhood to exclude lawyers from participation in a lucrative practice, and to cause the loyalties of the union-recommended lawyers to be divided between the union and their clients. E.g., Hildebrand v. State Bar, 36 Cal.2d 504, 225 P. & 508 (1950); Doughty v. Grills, 37 Tenn.App. 63, 260 S.W.2d 379 (1952); In re Brotherhood of Railroad Trainmen, 13 Ill.2d 391, 150 N.E.2d 163 (1958); see Student Symposium, 107 U. of Pa.L.Rev. 387 (1959); 11 Stan.L.Rev. 394 (1959). These decisions have been vigorously criticized. See Traynor, J., dissenting in Hildebrand, supra; Drinker, Legal Ethics, 161-167 (1953).
26. Compare Opinion 148, supra, n. 13, 19, at 312 (1957):
The question presented, with its implications, involves problems of political, social and economic character that have long since assumed the proportions of national issues, on one side or the other which multitudes of patriotic citizens have aligned themselves. These issues transcend the range of professional ethics.
27. Improper competition among lawyers is one of the important considerations relied upon to justify regulations against solicitation. See Note, Advertising, Solicitation and Legal Ethics, 7 Vand.L.Rev. 677, 684 (1954).