The Consciousness of the Litigator

Notes

Notes Introduction 1. In 1921, Learned Hand commented: “I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.” Learned Hand, The De‹ciencies of Trials to Reach the Heart of the Matter, Address before the Association of the Bar of the City of New York (Nov. 17, 1921), in 3 Lectures on Legal Topics 87, 105 (1926). Hand’s appreciation of the dreadfulness of lawsuits contributed to his greatness as a judge. 2. Every lawyer is bound by the of‹cial ethical rules of the profession in each state in which he practices. The ethical rules vary in particulars from state to state. Practicing lawyers also commonly refer to the American Bar Association’s Model Rules of Professional Conduct. The broad limits on the lawyer’s primary duty to the client generally relate to the lawyer’s obligations as an of‹cer of the court and as a public citizen. 1. The Lawyer in American Society 1. This understanding of Tocqueville’s sense of the virtues of the old order and the challenge of democracy is based on Phillips Bradley, A Historical Essay, in 2 Alexis de Tocqueville , Democracy in America 370 (Phillips Bradley ed., Vintage Books 1990) (1840); Doris S. Goldstein, Trial of Faith: Religion and Politics in Tocqueville’s Thought (1975); André Jardin, Tocqueville: A Biography (Lydia Davis with Robert Hemenway trans., 1988) (1984); Harvey C. Mans‹eld & Delba Winthrop, Editor’s Introduction to Alexis de Tocqueville, Democracy in Amer129  ica, at xvii (Harvey C. Mans‹eld & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835, 1840); and especially on Tocqueville’s own introduction to his study, Alexis de Tocqueville, Democracy in America 3–15 (Harvey C. Mans‹eld & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835, 1840). Tocqueville’s preoccupation with public morality as a component of his complex thought is discussed particularly in Goldstein, supra at 87–88, 128. Tocqueville ’s concern with greatness is discussed particularly in Mans‹eld & Winthrop, supra at xxiii–xxix. 2. Jardin, supra note 1, at 3–36. 3. Id. at 35–36, 54. 4. Tocqueville wrote about the episode in a letter to a con‹dante in 1857, reproduced in part in Jardin, supra note 1, at 61. In the letter, Tocqueville does not identify the works he read, but his biographer reports that the Tocqueville library, which has survived, includes few modern works other than those of Voltaire, Montesquieu, Buffon, Rousseau, Mably, and Raynal. Id. at 62. Also, in 1836, Tocqueville wrote privately that Montesquieu and Rousseau, along with the seventeenthcentury philosopher Pascal, were daily in›uences on his thought. Mans‹eld & Winthrop, supra note 1, at xxx. 5. Tocqueville and Beaumont’s report was ‹rst published in France as Du Système pénitentiaire aux ÉtatsUnis et son application en France (Paris, H. Fournier 1833) and in the United States as The Penitentiary System in the United States and Its Application in France (Philadelphia, Carey, Lea and Blanchard 1833). See Bradley, supra note 1, at 374 n.2. 6. The classic account of Tocqueville and Beaumont’s travels through the United States is George Wilson Pierson , Tocqueville in America (Johns Hopkins Univ. Press 1996) (1938). 7. See generally Robert V. Remini, Andrew Jackson and the Course of American Empire, 1767–1821 (1977). 8. Robert V. Remini, Andrew Jackson and the Course of American Freedom, 1822–1832, at 83–99 (1981). Notes to Pages 16–20 130
9. Id. at 172–78. 10. For the details of Jackson’s presidency, see id. at 181–392; Robert V. Remini, Andrew Jackson and the Course of American Democracy, 1833–1845, at 1–419 (1984). 11. Tocqueville, supra note 1, at 12–15. 12. Alexis de Tocqueville to M. Stoffels (Feb. 21, 1835), in 1 Memoirs, Letters, and Remains of Alexis de Tocqueville 397 (M. C. M. Simpson ed., London, Macmillan 1861), quoted in Bradley, supra note 1, at 383–84. 13. Tocqueville, supra note 1, at 251–52. 14. Id. at 252. 15. Id. 16. Id. at 256. 17. Id. 18. Roscoe Pound, The Lawyer from Antiquity to Modern Times 221–49 (1953). 19. David Haward Bain, Empire Express: Building the First Transcontinental Railroad 663 (1999). 20. James Willard Hurst, The Growth of American Law: The Law Makers 302 (1950). 21. Pound, supra note 18, at 254. 22. Edmund Ions, James Bryce and American Democracy, 1870–1922, at 19–141...