1. Minutes of Board Meeting, 13 March 1916, Papers of the NAACP (Frederick, Md.: University Publications of America, 1982; 1996) [hereafter “NAACP Papers Microfilm Edition”], Pt. I, Reel 1, Frame 480.

2. 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 Meier, August and Rudwick, Elliott, 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.Google Scholar Meier and Rudwick also discuss some of the white lawyers in various regions who served as local counsel. Ibid., 130–40. Charles Kellogg's classic general history of the NAACP contains a short discussion of some of the committee's early work. Kellogg, Charles Flint, 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.Google Scholar There are occasional references to the committee in B. Ross, Joyce, J. E. Spingarn and the Rise of the NAACP, 1911–1939 (New York: Atheneum, 1972), 21–22, 35.Google Scholar More comprehensive treatments of the internal workings of the NAACP's litigation operations begin with the mid-1920s. See Tushnet, Mark V., Making Civil Rights Law (New York: Oxford University Press, 1994)Google Scholar; Tushnet, Mark V., The NAACP's Legal Strategy against Segregated Education, 1925–1950 (Chapel Hill: University of North Carolina Press, 1987)CrossRefGoogle Scholar; Kluger, Richard, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Alfred A. Knopf, 1975)Google Scholar; Miller, Loren, The Petitioners: The Story of the Supreme Court of the United States and the Negro (New York: Panetheon, 1966).Google Scholar

3. The terms “African-American” and “white” are used as shorthand in referring to race, with due regard to the historically contingent and socially constructed nature of such terms. 2.

4. See Tushnet, Making Civil Rights Law, 272–83; see also Carle, Susan D., “From Buchanan to Button; Legal Ethics and the NAACP (Part II),” University of Chicago Law School Roundtable 8 (2001): 281–311.Google Scholar

5. 371 U.S. 415 (1963).

6. See Black's Law Dictionary, 6th ed. (1990), s.v. “test case.”.

7. 347 U.S. 483 (1954); see generally Miller, The Petitioners; and Kluger, Simple Justice.

8. 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. 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. McCurdy, Charles W., “American Law and the Marketing Structure of the Large Corporation, 1875–1890,” Journal of Economic History 38 (1978): 631–49.CrossRefGoogle Scholar 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. Clay Smith, J., Emancipation: The Making of the Black Lawyer: 1844–1944 (Philadelphia: University of Pennsylvania Press, 1993), 96–97.Google Scholar

9. For an exhaustive account of the extant evidence concerning these lawyers' biographies, see Smith, Emancipation.

10. 163 U.S. 537 (1896).

11. See Smith, Emancipation, 283–85; Lofgren, Charles A., The Plessy Case: A Legal-Historical Interpretation (New York: Oxford University Press, 1987), 29–39Google Scholar; Plessy v. Ferguson: A Brief History with Documents, ed. Thomas, Brook (Boston: Bedford Books, 1997), 4–5.Google Scholar

12. Smith, Emancipation, 284–85. Smith points out that Tourgee has incorrectly been given all credit for the campaign.

13. See Harris, Cheryl I., “Whiteness as Property,” Harvard Law Review 106 (1993): 1709, 1745–50CrossRefGoogle Scholar (discussing implications of Plessy in establishing “whiteness” as a reputational property right). 10.

14. Conversation with J. Clay Smith, June 1996.

15. Meier, August, Negro Thought in America, 1880–1915 (Ann Arbor: University of Michigan Press, 1963), 173, 177.Google Scholar

16. For a general history of the Niagara Movement, see Rudwick, Elliott M., “The Niagara Movement,” Journal of Negro History 43 (1957): 177–200.CrossRefGoogle Scholar

17. Particularly good biographies of Du Bois that discuss his involvement in founding the Niagara Movement and the NAACP are Meier, August, W. E. B. Du Bois: A Study in Minority Group Leadership (Philadelphia: University of Pennsylvania Press, 1960), 94–150Google Scholar, and David Levering Lewis, W. E. B. Du Bois: Biography of a Race, 1868–1919 (1993), 297–342, 386–434.

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 Ovington, Mary White, The Walls Came Tumbling Down (New York: Arno Press, 1969), 100–46Google Scholar; Ovington, Mary White, Black and White Sat Down Together: The Reminiscences of an NAACP Founder (New York: Feminist Press, 1995), 56–60, 66–71.Google Scholar

18. Rudwick, “The Niagara Movement,” 180. 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.

19. See “Third Annual Meeting of the Niagara Movement, August 26–29, 1907,” Joel Spingarn [hereafter “J. Spingarn Papers”], Manuscript Division, Moorland-Spingarn Research Center, Howard University, Box 95–14, Folder 554; “List of Legal Committee Members,” ibid., Folder 557.

20. See “Constitution and By-Laws of the Niagara Movement,” in Pamphlets and Leaflets by W. E. B. Du Bois, ed. Aptheker, Herbert (White Plains, N.Y.: Kraus-Thomason Organization, 1986), 59, 61.Google Scholar

21. See Smith, Emancipation, 146–47, 179n. 184, 181 n. 199; Power, Garrett, “Apartheid Baltimore Style: The Residential Segregation Ordinances of 1910–13,” Maryland Law Review 42 (1983): 289, 305–28.Google Scholar

22. See Edwards v. Nashville, Chattanooga & St. RR., June 24, 1907 (ICC); 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; “The Niagara Movement” (1908), in Pamphlets and Leaflets by W. E. B. Du Bois, 77; “The Niagara Movement” (1909), in Pamphlets and Leaflets by W. E. B. Du Bois, 79; Rudwick, “The Niagara Movement,” 190.

23. For more detailed chronicles of these disputes, see Meier, W. E. B. Du Bois, 108–19; Lewis, W. E. B. Du Bois, 297–342.

24. See Logan, Rayford W., The Negro in American Life and Thought: The Nadir, 1877–1901 (New York: Dial Press, 1954).Google Scholar 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 Barnett, Ida W., “Our Country's Lynching Record,” Survey, 1 February 1913, 574Google Scholar, reprinted in Thompson, Mildred I., Ida B. Wells-Barnett (Brooklyn: Carlson Publishing, 1990), 277–80Google Scholar; Zangrando, Robert L., The NAACP Crusade Against Lynching, 1909–1950 (Philadelphia: Temple University Press, 1980), 5–8Google Scholar; Vann Woodward, C., The Strange Career of Jim Crow, 3d ed. (New York: Oxford University Press, 1974), 72–110.Google Scholar

25. See, e.g., Kellogg, NAACP.

26. Ibid., 5.

27. Ibid., 33 n. 13.

28. The backgrounds of the founding members of the NAACP are discussed in further detail in Glasberg, Victor M., “The Emergence of White Liberalism” (Ph.D. diss., Harvard University, 1971), 76–106Google Scholar; McPherson, James M., The Abolitionist Legacy: From Reconstruction to the NAACP (Princeton, N.J.: Princeton University Press, 1975), 391–92.Google Scholar

29. 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; McPherson, The Abolitionist Legacy, 343, 376 n. 17, 389 and n. 44; Stueck, William, “Progressivism and the Negro: White Liberals and the Early NAACP,” The Historian 38 (1975): 58–78.CrossRefGoogle Scholar

30. For a discussion of the many obstacles faced by African-American lawyers seeking to obtain a legal education, see Smith, Emancipation, 33–39; Stevens, Robert, 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, 195–96Google Scholar; see also Rudwick and Meier, “Attorneys Black and White,” 132–33.

31. Kellogg, NVAACP, 104.

32. See generally Levy, Eugene D., James Weldon Johnson: Black Leader, Black Voice (Chicago: University of Chicago Press, 1973)Google Scholar; Johnson, James Weldon, Along This Way: The Autobiography of James Weldon Johnson (New York: Viking Press, 1938)Google Scholar; Fleming, Robert E., James Weldon Johnson (New York: Simon and Schuster, 1987)Google Scholar (assessing Johnson's contribution to African-American letters). Johnson was the first African-American admitted to the Florida bar after Reconstruction. Smith, Emancipation, 279, 141–44.

33. See Meier and Rudwick, “The Rise of the Black Secretariat,” 109–11.

34. These law-related activities of other committees included fighting for antilynching legislation, opposing new Jim Crow initiatives at the state and federal levels, protesting various outrages such as the exclusion of African-Americans from the federal government during the Wilson Administration and the showing of the racist propaganda films and plays, and fighting for better treatment of African-American soldiers during the First World War. See generally Kellogg, NAACP.

35. Minutes of Executive Committee, 3 January 1911, NAACP Papers Microfilm Edition, Pt. l, Reel 1, Frame 42.

36. Thus this article does not examine the legal and extralegal challenges faced by civil rights lawyers working in local communities around the country, though that topic is also in need of more attention. It is clear that, in some parts of the country, lawyers and others championing civil rights causes during the 1910s suffered brutal attacks, both through law and physical violence. The facts underlying one NAACP-supported case, Moore v. Dempsey, 261 U.S. 86 (1923), provide an example. 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 Conner, Richard C., A Mob Intent on Death: The NAACP and the Arkansas Riot Cases (Middletown, Conn.: Wesleyan University Press, 1988).Google Scholar

In another example, which foreshadowed tactics southern states would use against the NAACP after Brown, the state of Texas in 1919 subpoenaed the records of the Austin NAACP and threatened to close down the organization, apparently because state officials had come across NAACP literature urging an end to public transit segregation. John Shillady, the white social worker who served as the NAACP's second national secretary, traveled to the state to meet with state officials in an attempt to head off such steps. There he was attacked and beaten unconscious by a group of men that included a judge and constable, who freely admitted their involvement. The NAACP was unable to find a local lawyer of high repute to file suit to seek redress for the assault, and Shillady resigned soon afterwards, writing “‘I am less confident than heretofore of the speedy success of the Association's full program.’” Kellogg, NAACP, 239–1 and n. 130 (quoting “Opinion,” The Crisis 20 [June 1920]: 72).

Thus, the reaction of local legal establishments to civil rights activism during the period I examine here varied widely by region. In examining one localized legal practice culture I by no means intend to suggest that it is typical; my point is, in fact, exactly the opposite–namely, that the NAACP national legal committee enjoyed a favorable local climate that helped facilitate the early development of the organization's legal agenda.

37. For a discussion of elite turn-of-the-century lawyers' views of their duties to engage in reform efforts, see Gordon, Robert W., “‘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. Gawalt, Gerard W. (Westport, Conn.: Greenwood Press, 1984), 51–58.Google Scholar

38. 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”; National Cyclopaedia of American Biography, vol. 31 (New York: James T. White, 1944), s.v. “Ewing, Thomas.”

39. Ibid. When he was appointed U.S. Commissioner of Patents by Woodrow Wilson in 1913, Ewing left New York and resigned from the legal committee.

40. Who Was Who in America, v. 4, 1961–1968 (1968), s.v. “Wherry, William Mackey, Jr.”

41. Boston, Lyon, “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.Google Scholar

42. According to a memorial Boston's son wrote on his father's death, Boston was a “mild-mannered ‘lawyer of the old school’” whose “legal distinction was more that of a lawyer's lawyer than as an advocate.” Ibid., 287–90. He had “no particular hobbies”; his interests instead “centered in the law.” Ibid., 291. He was reputed to be kind to “obscure and unrecognized members of the profession,” including a “colored lawyer, young, unknown and somewhat apprehensive of his welcome at the Bar Association,” whom Boston reportedly befriended and made feel welcome. Ibid., 291. 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.” Boston, Charles A., “A Code of Legal Ethics,” The Green Bag 20 (1908): 224, 228Google Scholar; Boston, Charles A., “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.Google Scholar

On the prevalence of antisemitism among the leaders of bar associations at the time, see Matzko, John Austin, “The Early Years of the American Bar Association, 1878–1928” (Ph.D. diss., University of Virginia, 1984), 231, 234–46, 344–45, 449–50Google Scholar; Auerbach, Jerold, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976), 102–29.Google Scholar 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. 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 Abel, Richard, “Why Does the ABA Promulgate Ethical Rules?” Texas Law Review 59 (1981): 639–88Google Scholar; Richard L. Abel, American Lawyers, 142–57.

43. See Boston, Charles, 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.Google Scholar

44. 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.

45. Who Was Who in America, vol. 1, 1897–1942 (1942), s.v. “Powell, Wilson Marcy.”

46. See Ross, J. E. Spingarn, 3.

47. 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; see also Diner, Hasia R., In the Almost Promised Land: American Jews and Blacks, 1915–1935 (Baltimore: Johns Hopkins University Press, 1995; Westport, Conn.: Greenwood Press, 1977), 119–33.Google Scholar The Spingarn brothers in a sense epitomize the historical alliance between African-American civil rights activists and progressive-minded Jews. Joel Spingarn's life has been thoughtfully examined by his biographer, Joyce Ross, but unfortunately no such biography exists of Arthur Spingam, a fascinating character in his own right.

48. Dictionary of American Biography, ed. Schuyler, R., vol. 22, supp. 2 (New York: Charles Scribner's Sons, 1958)Google Scholar, s.v. “Spingarn, Joel Elias”; National Cyclopaedia of American Biography, vol. 17 (1927), s.v. “Spingarn, Joel Elias”; Ross, J. E. Spingarn, 55, 59–60.

49. Ross, J. E. Spingarn, 13–14.

50. Despite their differing political philosophies, Joel Spingarn and Du Bois had a close intellectual friendship, based in their mutual respect as fellow holders of doctoral degrees. Du Bois described Joel Spingarn as having the largest influence on him of any white man and proclaimed him, almost alone among the NAACP's white leaders and staff, as free of race prejudice. The friendship between these two men produced a powerful alliance and helped hold together the organization's leadership by keeping Du Bois within the fold through many turbulent internal disputes. Ross, J. E. Spingarn, 63–64.

51. Who Was Who in America, vol. 5, 1969–1973 (1973), 683, s.v. “Spingarn, Arthur B.”

52. 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., Shaffer, Thomas L. and Shaffer, Mary M., American Lawyers and Their Communities (Notre Dame: University of Notre Dame Press, 1991), 30–126Google Scholar; Kronman, Anthony T., The Lost Lawyers: Failing Ideals of the Legal Profession (Cambridge: Harvard University Press, 1993), 11–17.Google Scholar

53. “Charles H. Studin,” Saturday Review of Literature 33 (March 25, 1950): 21 (obituary).

54. 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.

55. Smith, Emancipation, 400.

56. See Thurston v. Thurston, 136 N.Y.S. 340, 341 (1911); Cunningham v. Platt, 144 N.Y.S. 51, 52, 82 Misc. 486 (1913).

57. Smith, Emancipation, 400, 421, 440 n. 291.

58. Smith, Emancipation, 421; The Booker T. Washington Papers, ed. Harlan, Louis R. and Smock, Raymond W. (Urbana: University of Illinois Press, 1980), 7: 139, 141Google Scholar; The Booker T. Washington Papers, 11: 29. 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 Harlan, Louis R., Booker T. Washington: The Wizard of Tuskegee, 1901–1915 (New York: Oxford University Press, 1983), 379–404.Google Scholar

59. Meier and Rudwick, “Attorneys Black and White,” 159 n. 22 (citing New York Age, 11 September 1911).

60. Minutes of the Meeting of the Board of Directors, June 1911, NAACP Papers Microfilm Edition, Pt. 1, Reel 1, Frame 88.

61. 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.”; “Melville H. Cane, 100, a Lawyer Who Wrote Poetry and Essays,” New York Times, 11 March 1980, D19 (obituary).

62. Booker T. Washington Papers, vol. 3, 455–56; vol. 9, 124, 359, 224, 487–89; Meier, Negro Thought in America, 181.

63. See Meier, W. E. B. Du Bois, 102–3, 108. 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, and August Meier, “Booker T. Washington and the Rise of the NAACP,” in Along the Color Line, 75–93.

64. The national office may have harbored some mistrust of Stewart because of his prior connections to Booker T. Washington. Stewart had been a “dairying” student at Washington's Tuskegee Institute early in his life and he maintained occasional communications with Washington, though Stewart was far more militant than Washington and eventually allied with Washington's critics.

65. Arthur Spingarn to Joel Spingarn, 10 July 1913, Papers of Arthur B. Spingarn (Library of Congress Manuscript Division) [hereafter A. Spingarn Papers-LOC], Box 1, Folder entitled “Joel Spingarn—to and from Arthur Spingarn, 1912–18.”

66. Minutes of the Meeting of the Board of Directors, 1 July 1913, NAACP Papers Microfilm Edition, Pt. I-A, Reel 1, Frame 199.

67. Gilchrist Stewart to Joel Spingarn, 1 December 1913, J. Spingarn Papers, Box 95–10, Folder 427.

68. In 1922, Spingarn and Studin invited James Cobb, an African-American practitioner in Washington, D.C., who was an authority on U.S. Supreme Court practice, to join the national legal committee and Cobb accepted. Spingam and Studin also tried to convince Cobb to accept the position of national staff counsel in the New York City office, but Cobb declined because he did not want to leave D.C. See Arthur Spingarn to James Cobb, 27 May 1922, A. Spingarn Papers-LOC, Box 6, Folder “Jan.-June 1922” James Cobb to Arthur Spingarn, 14 June 1922, ibid.

69. “The NAACP,” The Crisis 3 (February 1912): 159.

70. See “The NAACP Begins,” The Crisis 3 (March 1912): 205.

71. J. Spingarn Papers, Box 94–15, Folder 548; see also Kellogg, NAACP, 123. 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 Spingarn of N. A. A. C. P. Is Dead,” New York Times, 2 December 1971, 51, col. 1.

72. 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.”

73. Ibid.; Joel E. Spingarn to Arthur B. Spingarn, 23 March 1915; 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.”

74. Ross, J. E. Spingarn, 40.

75. 238 U.S. 347 (1915).

76. For further biographical information on Storey, see Susan Carle, “From Buchanan to Button”.

77. Letterhead of New York Committee, found in A. Spingarn Papers-LOC, Box 5, Folder “General Correspondence, 1912–13” (emphasis added).

78. “First Annual Meeting of the Corporation,” The Crisis 3 (February 1912): 158.

79. Report of Chair of Board of Directors, Minutes of Annual Meeting, 3 January 1916, NAACP Papers Microfilm Edition, Pt. I, Reel 13, Frame 56.

80. Arthur Spingarn to H. Williamson, 18 February 1916, A. Spingarn Papers-LOC, Box 5, Folder “1916.”

81. Mary W. Ovington to Arthur B. Spingarn, 2 April 1912, ibid., Box 6, Folder “April-Dec. 1921.”

82. Minutes of Annual Meeting, 3 January 1916, NAACP Papers Microfilm Edition, Pt. 1, Reel 1, Frame 438.

83. William Pickens, Speech to Association of Negro Press, 23 January 1935, A. Spingarn papers-HU, Box 94–6, Folder 135.

84. Minutes of the Meeting of the Board of Directors, 7 October 1913, NAACP Papers Microfilm Edition, Pt. I, Reel 1, Frame 216.

85. National Cyclopaedia of American Biography (1885–1928), vol. 22 (1932), 156. The Brinsmades claimed an ancestor present at the Connecticut state convention at which the U.S. Constitution was ratified. Brinsmade's grandmother founded the Gunnery School in Connecticut, where Brinsmade obtained his primary education and where his father taught. Ibid.

86. Minutes of the Meeting of the Board of Directors, 7 October 1913, NAACP Papers Microfilm Edition, Pt. I, Reel 1, Frame 228.

87. Minutes of the Meeting of the Board of Directors, 6 January 1914, ibid., Frame 261; Minutes of the Meeting of the Board of Directors, 3 March 1914, ibid., Frame 273; Minutes of the Meeting of the Board of Directors, 7 July 1914, ibid., Frame 300.

88. NAACP, Annual Report for 1913 (New York: NAACP, 1914), 28–29Google Scholar (Brinsmade's discussion of undertaking long investigations only to conclude that the cases were not within the NAACP's defined scope).

89. 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); 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); cf. Ross, J. E. Spingarn, 32, 34 (describing Spingarn's travels “to arouse blacks to more militant stance for their rights”).

90. After receiving an invitation to preside at one protest action in Washington, D.C., Storey wrote to his good friend, board chair Oswald Villard, worrying that “there will probably be some violent speaking there, and if you think I can retain my influence better by not taking a prominent part in it, I will not go.” Moorfield Storey to Oswald Villard, 8 October 1913, NAACP Papers Microfilm Edition, Pt. 1, Reel 24, Frame 12.

91. See NAACP Annual Report for 1913, 27 (describing Brinsmade's practice of writing with “requests for information and offers of help” to individuals identified in newspaper reports as possible victims of discrimination).

92. Arthur Spingarn to May Childs Nerney, 13 June 1914, A. Spingarn Papers-LOC, Box 5, Folder “1914.”

93. 235 U.S. 151 (1914).

94. Arthur Spingarn to Ethelbert T. Barbour, 26 January 1915, A. Spingarn Papers-LOC, Box 5, Folder “1915.”

95. See McCabe, 159–60.

96. See NAACP Annual Report for 1913, 21 (annual report of the attorney).

97. Moorfield Storey to May Childs Nerney, 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”.

98. See NAACP Annual Report for 1913, 21.

99. McCabe, 163–64.

100. See Meier and Rudwick, “Attorneys Black and White,” 135–36, 164 n. 34; see also Smith, Emancipation, 536 n. 234 (further discussing criticisms of McCabe's lawyers). Although the NAACP saw McCabe as an unmitigated defeat, scholars writing today have a different assessment. In dicta, the Court noted that the lower courts' constitutional reasoning was plainly infirm because “if facilities are provided, substantial equality of treatment of persons traveling under like conditions cannot be refused.” McCabe, 161. Thus, as constitutional law scholar Benno Schmidt and others have argued, McCabe signaled an important shift in the court's civil rights jurisprudence: “McCabe was the first time the Court gave weight to the equality side of the separate but equal equation.” Moreover, there were no dissenters (four justices instead “concurred in the result”) and later decisions cited McCabe's “equal treatment” dictum as if it established a precedent. 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. Schmidt, Benno C. 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.CrossRefGoogle Scholar

101. 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 Mushlin, Michael B., “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, 547–61Google Scholar (describing Supreme Court's rigid application of case-or-controversy requirements prior to the act's passage).

102. 245 U.S. 60 (1917).

103. In the nineteenth century, similar statutes had been enacted against Asians. See, e.g., In re Lee Sing, 43 F. 359, 362 (C. C. N. D. California, 1890) (invalidating San Francisco residential segregation ordinance directed at Chinese people); see generally McClain, Charles J., In Search of Equality: The Chinese Struggle against Discrimination in Nineteenth-Century America (Berkeley: University of California Press, 1994), 223–33.Google Scholar Indeed, the NAACP cited In re Lee Sing in its briefs in Buchanan v. Warley, though the Court did not cite it in its opinion. Ibid., 233.

104. For biographical information on Hawkins, see Smith, Emancipation, 38, 146–47, 179–81 nn. 181, 184, 193, 199.

105. This case was Clark v. The Maryland Institute for the Promotion of the Mechanic Arts, 87 Md. 643, 41 A. 126 (1898). As Smith points out, Hawkins's theory in this case–that race-based exclusion by private parties using public property is unconstitutional– was not “wrong” but simply decades before its time. Smith, Emancipation, 147, 181 nn. 196, 197. The U.S. Supreme Court accepted this theory in 1961 in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

106. 121 Md. 534, 88 A. 546 (1913).

107. See Ashbie Hawkins, W., “A Year of Segregation in Baltimore,” The Crisis 3 (November 1911): 27–30Google Scholar; 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).

108. 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). 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.” Afinal 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).

109. See NAACP Annual Report for 1913, 7, 23.

110. Minutes of Board Meeting, 7 July 1914, NAACP Papers Microfilm Edition, Pt. I, Reel 1, Frames 300, 305 (reporting on funds raised at mass meetings at which Brinsmade and Joel Spingarn spoke); Wright, George C., “The NAACP and Residential Segregation in Louisville, Kentucky, 1914–1917,” Register of the Kentucky Historical Society 78 (1980): 46–54.Google Scholar

111. Wright, “The NAACP and Residential Segregation,” 47 n. 16.

112. Hawkins had asked to participate in briefing the case before the Supreme Court but the legal committee refused his request. Nerney complained that “[i]n the past [Hawkins] has always refused to have white lawyers associated with his cases and even has refused to take advantage of their knowledge until he was in a hole.” May C. Nerney to Arthur Spingarn, 2 July 1915, A. Spingarn Papers-LOC, Box 5, Folder “July-Dec. 1915.” Hawkins ended up filing a separate amicus brief in Buchanan v. Warley on behalf of the Baltimore NAACP branch.

113. Buchanan, 245 U.S. at 80–82.

114. See Brief for Plaintiff in Error on Rehearing, Buchananv. Warley, 245 U.S. 60(1917) (No. 231).

115. This document is duplicated in Schmidt, “Principle and Prejudice,” 512.

116. Scholars have traced how residential segregationists simply switched tactics, channeling their energies into “private law” restrictive covenant strategies. See, e.g., Vose, Clement E., Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases (Berkeley: University of California Press, 1959).Google Scholar 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; Fischel, William, “Why Judicial Reversal of Apartheid Made a Difference,” Vanderbilt Law Review 51 (1998): 975–91.Google Scholar

117. A provocative treatment of the significance of Buchanan for the Court's civil rights jurisprudence is Bernstein, David E., “Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective,” Vanderbilt Law Review 51 (1998): 797–879.Google Scholar 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.

118. Minutes of Board Meeting, 13 March 1916, NAACP Papers Microfilm Edition, Pt. I, Reel 1, Frame 524.

119. Joel Spingarn devoted his political efforts during this period to the establishment of an officers' training camp for African-American soldiers, which, because of the political tenor of the times, he accepted would have to be segregated from white officers' training. Spingarn's work in this regard was extremely controversial within the NAACP and in the African-American community in general. Spingarn believed that the establishment of such a camp, even though segregated, was crucial to African-Americans' career advancement in the military, but many, including Gilchrist Stewart, criticized Spingarn's initiative as reflecting a tacit endorsement of segregation. The NAACP eventually passed a resolution favoring the creation of such camps over providing no training opportunities for African-American officers, and memories of this controversy contributed to suspicions about the NAACP by more radical African-American activists. See generally Ross, J. E. Spingarn, 81–102; Kellogg, NAACP, 250–55.

120. NAACP Annual Meeting, 19 December 1914, NAACP Papers Microfilm Edition, Pt. I, Reel 1, Frame 340.

121. Secretary's Report, 6 December 1915, NAACP Papers Microfilm Edition, Pt. 1, Reel 1, Frame unnumbered.

122. White also screened all requests for legal aid and wrote lengthy, detailed memoranda to the legal committee analyzing these requests and making preliminary recommendations. Before long, White began handling the legal committee's routine business and negotiations with local lawyers as well. Although White never held himself out to be a lawyer or represented any client before a tribunal, the amount of discretion and independence he exerted in the organization's legal affairs led him to function much like a junior lawyer under Spingarn's supervision, a delegation of legal authority to a nonlawyer that might have created problems in light of the legal ethics strictures prohibiting unauthorized practice, had anyone wanted to make an issue of it.

The level of legal responsibility White shouldered belied the legal committee's assumptions that African-American lawyers could not be trusted with control over the NAACP's most important legal matters and signaled an early step in the gradual shift of the organization's legal leadership to African-American attorneys that began in earnest in the 1920s, culminating in Charles Hamilton Houston's appointment as staff attorney in 1934. See Meier and Rudwick, “The Rise of the Black Secretariat,” 113; Meier and Rudwick, “Attorneys Black and White,” 148–56.

123. For general background on the 1908 canons, see Carle, Susan, “Lawyers' Duty to Do Justice: A New Look at the History of the 1908 Canons,” Law & Social Inquiry 24 (1999): 1, 6–9.CrossRefGoogle Scholar

124. See generally Martin, George, 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)Google Scholar; Powell, Michael J., From Patrician to Professional Elite: The Transformation of the New York City Bar Association (New York: Russell Sage Foundation, 1988)Google Scholar; Chester, Alden, Courts and Lawyers of New York: A History, 1609–1925, vol. 3 (New York: American Historical Society, 1925).Google Scholar

125. Boston, “The Recent Movement Towards the Realization of High Ideals in the Legal Profession,” 770–71.

126. 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.

127. The membership of the ABCNY's grievance committee reflected the organization's elitist orientation. Its members' social class and educational credentials read very much like those of the first NAACP legal committee members, except that the grievance committee members were even more upper-class and homogeneous in their backgrounds. For example, Howard Townsend, chair of the committee from 1901 to 1925, traced his first paternal American ancestor to 1643. Graduating from Harvard College in 1880 and from Harvard Law School two years later, Townsend had engaged in general practice in a variety of small-firm configurations. Townsend, an Epscopalian, served on a number of corporate boards and was active in a variety of philanthropic organizations. See National Cyclopaedia of American Biography, vol. 31 (1944), 420–21.

128. 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.

129. Powell, From Patrician to Professional Elite, 20–21; Boston, “The Recent Movement Towards the Realization of High Ideals in the Legal Profession,” 768–69.

130. See Boston, Address of Charles A. Boston, Esq., 63, 69–83 (proposing draft legislation to establish new legal ethics disciplinary boards).

131. 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.” Boston, Charles A., Practical Activities in Legal Ethics: An Address before the Law Association of Philadelphia, November 14, 1913 (Philadelphia: The Law Association of Philadelphia, 1913), 5.Google Scholar

132. The full text of Canon 28 read as follows:

Stirring Up Litigation, Directly or Through Agents

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. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to be employed to bring suit or collect judgment, or 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, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attachés or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon every member of the Bar having knowledge of such practices upon the part of any practitioner immediately to inform thereof, to the end that the offender may be disbarred.

American Bar Association Canons of Professional Ethics, Canon 28 (1908) (italics in original), 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.

133. See Black's Law Dictionary, 6th ed., s.v. “barratry.” (defined as “[v]exatious incitement to litigation, esp. by soliciting potential legal clients”); see also Radin, Max, “Maintenance by Champerty,” California Law Review 24 (1935): 48–78.CrossRefGoogle Scholar

134. See generally Radin, “Maintenance by Champerty.”

135. 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. Bergstrom, Randolph E., Courting Danger: Injury and Law in New York City, 1870–1910 (Ithaca: Cornell University Press, 1993), 93.Google Scholar 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).

136. See In re Neuman, 255 N.Y.S. 438, 169 A.D. 638 (1915). 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.

137. 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.

138. NYCLA Op. No. 89 (1916), ibid., 563.

139. NYCLA Op. No. 199 (1922), ibid., 632, 633–34.

140. NYCLA Op. No. 244 (1926), ibid., 664–65.

141. NYCLA Op. No. 140 (1918), ibid., 592.

142. Association of the Bar of the City of New York, Committee on Ethics, Professional, Questions as to Proper Professional Conduct Submitted to and Answered by the Committee from May 1925 to June 1926, Pamphlet No. 2 (New York: Association of the Bar of the City of New York, 1925).Google Scholar

143. Association of the Bar of the City of New York Opinion [hereinafter ABCNY Op.] No. 13, 30 January 1925, in Opinions of the Committees on Professional Ethics, 8.

144. American Bar Association, Advisory Opinion [hereinafter ABA Op.] No. 4, 7 July 1924, in Opinions of the Committee on Professional Ethics and Grievances with the Canons of Professional Ethics Annotated and the Canons of Judicial Ethics (Chicago: ABA, 1931), 6–7.

145. Ibid., ABA Op. No. 8, 28 April 1925, 17–21.

146. Although there is little other material of this type in the NAACP's manuscript collections for the period at issue here, its absence may simply indicate that the organization's legal advisors were exercising appropriate caution in what they preserved for posterity.

147. See Boston, “The Recent Movement Towards the Realization of High Ideals in the Legal Profession,” 772 (explaining that his “proposed code now sleeps in a state of innocuous desuetude,” opposed by those who, “in a commercial atmosphere, cannot yet accept the canons against the direct solicitation of business”); Boston, Address of Charles A. Boston, Esq., 15, 17–18.

148. Boston, Address of Charles A. Boston, Esq., 49, 67.

149. Ibid. A runner “solicits business for an attorney from accident victims”; a capper is “a decoy or lure for purpose of swindling.” Black's Law Dictionary, 6th ed., s.w. “runner,” “capper.”

150. Boston, Address of Charles A. Boston, Esq., 50 (emphasis in original).

151. See Carle, “Lawyers' Duty to Do Justice,” 10–16.

152. Boston, Address of Charles A. Boston, Esq., 53.

153. Ibid., 52.

154. 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.

155. Boston, Address of Charles A. Boston, Esq., 52.

156. Ibid., 53.

157. See above, 97. n. 1.

158. Boston's involvement in legal ethics issues in the later years of the 1920s provides an interesting coda to the story just presented. In 1925, Boston became chair of a special ABA committee to consider amendments to the 1908 canons. That committee added several new restrictions to the canons, including rules that curtailed the practice of law by “lay intermediary” organizations, except charitable societies “rendering aid to the indigent”; prohibited lawyers from bearing the expenses of litigation for a client; and stated that lawyers' professional cards “may with propriety contain only a statement of his name… profession, address, telephone number, and special branch of the profession practiced.” American Bar Association, Canons 35, 42, 43, reprinted in Opinions of the Committee on Professional Ethics and Grievances, 25. 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).Google Scholar 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 forward-minded organization, but the ABA was staunchly conservative. See Matzko, “The Early Years of the American Bar Association,” 435–94.

159. For more on the transition from the NAACP's early history to Button, see Carle, “From Buchanan to Button”.

160. On the monopoly-protecting purposes of these canons, see Auerbach, Unequal Justice; Abel, American Lawyers; Abel, “Why Does the ABA Promulgate Ethical Rules?”

161. NYCLA Op. No. 140 (1918), in Opinions of the Committees on Professional Ethics, 592 (emphasis added).

162. For classic literature examining the world view of Progressive Era reformers in this respect, see Link, Arthur S. and McCormick, Richard L., Progressivism (Arlington Heights, Ill.: Harlan Davidson, 1983)Google Scholar; Rodgers, Daniel, “In Search of Progressivism,” Reviews in American History 10 (1982): 113.CrossRefGoogle Scholar See also Spillenger, Clyde, “Elusive Advocate: Reconsidering Brandeis As People's Lawyer,” Yale Law Journal 105 (1996): 1445, 1512CrossRefGoogle Scholar (discussing “characteristic Progressive confidence in defining the public good” and the connection Brandeis drew between public interest work and not accepting fees); 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).

163. For a study analyzing the transition from a universalistic, rights-based to a pluralistic, representational conception of test case litigation in labor law, see Ernst, Daniel R., Lawyers against Labor: From Individual Rights to Corporate Liberalism (Urbana: University of Illinois Press, 1995).Google Scholar

164. See In re Neuman, 255 N.Y. 438.

165. The foundational article is Wilkins, David, “Who Should Regulate Lawyers?” Harvard Law Review 105 (1992): 801–87.CrossRefGoogle Scholar 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. The general approach of new legal process analysis is described in Rubin, Edward L., “The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions,” Harvard Law Review 109 (1996): 1393–1438.CrossRefGoogle Scholar

166. For a summary of this literature, see Carle, “From Buchanan to Button”.

167. See Meier and Rudwick, “Attorneys Black and White”; Meier and Rudwick, “The Rise of the Black Secretariat.”

168. See Tushnet, Making Civil Rights Law, 272–83; see also Carle, “From Buchanan to Button”.

169. Tushnet, Making Civil Rights Law, 278–79.

170. 371 U.S. 415 (1963); see also In re Primus, 436 U.S. 412 (1978) (holding that ACLU lawyer could not be prosecuted for solicitation).