American Law Institute

“ Along all these lines and many others the American courts have now for nearly three hundred years been quarrying out American law from the mine of the unwritten law of the people within their jurisdiction. It has been their natural endeavor to make each part of the new system of jurisprudence which they were gradually building up harmonious with every other and to give a certain symmetry to the whole. This has forced them to deduce rule from rule and principle from principle with a freedom for which in older countries of settled institutions there is less occasion. ”

“ But it is equally true that the most prominent and thorough-going reformers, such as Roosevelt, Bryan, and Hearst, are not lawyers by profession, and that the majority of prominent American lawyers are not reformers. The tendency of the legally trained mind is inevitably and extremely conservative. So far as reform consists in the enforcement of the law, it is, of course, supported by the majority of successful lawyers; but so far as reform has come to mean a tendency to political or economic reorganization, it has to face the opposition of the bulk of American legal opinion. ”

“ Every member of the bar of any court has all the legal rights of any other member of it.
The qualifications for admission to the bar are generally left to be regulated by the courts. In a few States they are fixed by constitutional or statutory provisions. In all, when the Constitutions do not regulate it, the legislature can. It has indeed been asserted that the admission of attorneys is in its nature a matter for the courts only. [Footnote: See American Law School Review, I, 211.] ”

“ The reform movement has brought into prominence many public-spirited lawyers, who, either as attorney-generals or as district attorneys, have sought vigorously to enforce the law and punish its violators. The lawyers, like every class of business and professional men, have felt the influence of the reforming ideas, which have become so conspicuous in American practical politics, and they have performed admirable and essential work on behalf of reform. ”

“ IT is one of the popular fallacies of the present day that the responsibility for the state of the law rests entirely with the legislative branch of the government. In reality, this responsibility is in every country shared to a great extent by the legal profession, and the slow development of the law, which results from the writings of jurists, the judgments of courts, and the customary practice of lawyers, is, perhaps, more irresistible, because less noticed, than the violent changes produced by direct legislation. ”

“ For more than six hundred years—that is, since Magna Carta, in 1215—there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws. ”

“ Another cause is also effective in lessening the docket of the District Courts. The ordinary lawyer prefers to sue in a State court, when he has the choice, on account of his greater familiarity with the practice there. Many American lawyers have never brought an action in a federal court. Most cases which could be so brought can also be and are brought in a State court.
Congress has thus far maintained for the federal courts the ancient distinction between procedure in law and in equity explained in the preceding chapter. There are those who claim that the reference in Art. ”

“ If that, therefore, can be taken away or impaired by legislation, either or all of the other rights can be so taken away or impaired. It is true that courts, by the common law, possess authority to adopt rules for the admission of counsel; but this is to enable them, for their own advantage and the benefit and protection of suitors, to obtain, not to exclude, lawyers of competent legal learning and of fair character. They have no right to use the power so as to exclude them. ”

“ Analysis of the 'protective jurisdiction' theory might also be attempted in terms of the language of Article III-construing 'laws' to include jurisdictional statutes where Congress could have legislated substantively in a field. This is but another way of saying that because Congress could have legislated substantively and thereby could give rise to litigation under a statute of the United States, it can provide a federal forum for statecreated rights although it chose not to adopt state law as federal law or to originate federal rights. ”

“ The source of substantive rights enforced by a federal court under diversity jurisdiction, it cannot be said too often, is the law of the States. Whenever that law is authoritatively declared by a State, whether its voice be the legislature or its highest court, such law ought to govern in litigation founded on that law, whether the forum of application is a State or a federal court and whether the remedies be sought at law or may be had in equity. ”

“ Several specifically prohibit the solicitation of legal business for a lawyer by an agent or 'runner.' E.g., Conn.Gen.Stat., 1958, § 51-87; N.C.Gen.Stat., § 84-38 (1958 Repl.Vol.) ; Wis.Stat.Ann., § 256.295 (1) . About 25 States prohibit the authorized practice of law by corporations. American Bar Foundation, Unauthorized Practice Statute Book (1961) , 78-90.↑ Virginia's policy of promoting aid to indigent suitors is of long standing, see 2 The Papers of Thomas Jefferson (Boyd ed. 1950) , 628, and the decision of the state court in this case fully implements that policy.↑ The Court, p. ”

“ We have construed the provision to require appointment of counsel in all cases where a defendant is unable to procure the services of an attorney, and where the right has not been intentionally and [p465] competently waived. [14] Though, as we have noted, the Amendment lays down no rule for the conduct of the States, the question recurs whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment. ”

“ I can but think it a great opportunity for Congress to intrust to the highest tribunal in this country, evidently imbued with a strong spirit in favor of a reform of procedure, the power to frame a model code of procedure, which, while preserving all that is valuable and necessary of the rights and remedies at common law and in equity, shall lessen the burden of the poor litigant to a minimum in the expedition and cheapness with which his cause can be fought or defended through Federal courts to final judgment. ”

“ When a case goes beyond that, it is not primarily to preserve the rights of the litigants. The Supreme Court's function is for the purpose of expounding and stabilizing principles of law for the benefit of the people of the country, passing upon constitutional questions and other important questions of law for the public benefit. ”

“ Congress having adopted the policy of opening the federal courts to suitors in all diversity cases involving the jurisdictional amount, we can discern in its action no recognition of a policy which would exclude cases from the jurisdiction merely because they involve state law or because the law is uncertain or difficult to determine. ”

“ The growth of the law of procedure in the United States during the last half-century has been steadily in the direction of simplicity and directness in the administration of justice. To that end, and with careful regard for the constitutional rights of the parties, this Court, pursuant to specific authorization by Congress, adopted the Rules of Civil Procedure, abolishing procedural distinctions between law and equity and establishing a single unified practice. ”

“ If every person who wants to be a lawyer is to be required to account for his associations as a prerequisite to admission into the practice of law, the only safe course for those desiring admission would seem to be scrupulously to avoid association with any organization that advocates anything at all somebody might possibly be against, including groups whose activities are constitutionally protected under even the most restricted notion of the First Amendment. ”

“ It seems to me that the majority takes a fundamentally unsound position when it endorses a practice based upon the artificial notion that rights and privileges can be stripped from a man in his capacity as a lawyer without affecting the rights and privileges of that man as a man. It is beyond dispute that one of the important ends served by the practice of law is that it provides a means of livelihood for the lawyer and those dependent upon him for support. That means of earning a livelihood is not one that has been conferred upon the lawyer as a gift from the State. ”

“ So, that any attempt to deem a state a party to a suit, simply because it has an interest in a suit, or is a stockholder in a corporation on the record, would be to renounce all ordinary doctrines of law applicable to such cases. The framers of the constitution must be presumed, in treating of the judicial department, to have used language in the sense, and with the limitations belonging to it in judicial usage. They must have spoken according to known distinctions, and settled rules of interpretation, incorporated into the very elements of the jurisprudence of every state in the Union. ”

“ We think the rule is settled in this court that whenever a new right is granted by statute, or a new remedy for violation of an old right, or whenever such rights and remedies are dependent on State statutes or acts of Congress, the jurisdiction of such cases, as between the law side and the equity side of the Federal courts, must be determined by the essential character of the case, and unless it comes within some of the recognized heads of equitable jurisdiction it must be held to belong to the other. ”

“ If a federal court concludes it is uncertain whether a Civil Rule truly governs a given question of practice, and if a relevant state rule of law differs, the extent to which application of the Civil Rule would interfere with substantive rights is certainly one of the factors that should be considered in deciding whether the Civil Rule applies. ”

“ We stand to let federal courts lose their command over critical litigation by what we do today. The Court holds that, though the litigant goes to the state court involuntarily, he loses his right to return to the federal court if he submits the local law question and the constitutional questions to the state tribunal without reserving his right to return to the federal forum for a final adjudication. It will often be necessary to submit the local law question in light of the constitutional questions. ”

“ In more concrete terms, the varied formulas which characterize this branch of our Constitutional Law have been devised by the Court from time to time in an endeavor to effect "a practical adjustment" between two great interests, the maintenance of freedom of commerce except so far as Congress may choose to restrain it, and the maintenance in the States of efficient local governments. Thus, while formulas may serve to steady and guide its judgment, the Court's real function in this area of judicial review is essentially that of an arbitral or quasi-legislative body. ”

“ Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through co-ordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim.' United States v. ”

“ By this Constitution, some of the best barriers of human rights are thrown away. Is there not an additional reason to have a bill of rights? By the ancient common law, the trial of all facts is decided by a jury of impartial men from the immediate vicinage This paper speaks of different juries from the common law in criminal cases; and in civil controversies excludes trial by jury altogether. There is, therefore, more occasion for the supplementary check of a bill of rights now than then. Congress, from their general powers, may fully go into business of human legislation. ”

“ To satisfy strict scrutiny, a law must be “narrowly tailored to serve a compelling governmental interest.” Amidon v. Student Ass’n of State Univ. of New York at Albany, 508 F.3d 94, 96 (2d Cir. 2007) . A statute is not narrowly tailored if “a less restrictive alternative would serve the Government’s purpose.” ”

“ Understanding the reasoning that animates the rule in turn provides pivotal insight into how the law will likely be applied in future judicial opinions. [6] Thus, deprived of access to judicial opinions, individuals cannot access the primary, and therefore best, source of information for the meaning of the law. [7] And as true as that is today, access to these opinions was even more essential in the 19th century before the proliferation of federal and state regulatory law fundamentally altered the role that common-law judging played in expounding upon the law. ”