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The Five Functions of the Lawyer:

Service to Clients and the Public

by Arthur T. Vanderbilt Chief Justiceof New Jersey

Speaking to the delegates to themeeting of theAmerican Law StudentAssociation, he will not be able to evaluate his
held in connection with the Annual Meeting of the American Bar Association last client's cause in terms of the realities
of the courtroom. It is in the court
August, Chief Justice Vanderbilt outlined the five essential functions of the great
room that the law is
lawyer: counseling, advocacy, improvinghis profession (including the courts and the applied to con
crete facts in specific cases, and it is
law itself),leadership inmolding public opinion, and the unselfish holding of public
the advocates who, with the judges,
office. In urging the future lawyers not to neglect the three latter functions in their
in the last analysis set the course of
pursuitof the firsttwo for theirclients,Chief JusticeVanderbilt also made some ob the law.
servations on practical means of achieving judicial reform.
Advocacy is the most intensive
work a lawyer is called on to do. It
Many lawyers fail to attain full action. In equal measure counseling was not until I was 50 that I
began to
growth. Indeed, many of them never calls for a wide and deep knowledge understand that the decision in
glimpse the vision either of what is of human nature and of modern so case is to be writ
every great likely
rightly expected of the legal profes ciety. Most difficult of all, truly ten with the lifeblood of some law
sion or of them individually. For great counseling calls for an ability yer. Advocacy is not a gift of the
them, alas, their responsibilities be to forecast the trends of the law.
gods. In its trial as well as in its ap
gin and end with serving their clients Very often what the client really pellate aspects it involves several
and for them the law is only a set wants to know is not what the law is distinct arts, each of which must be
of mechanical rules which they at today but what itwill be at the time studied and mastered. No law school
tempt manipulate for the interests the problem under discussion is in the country, so far as I know, pays
of their clients. A lawyer with such likely to come up for adjudication in much attention to them. Indeed, it
an outlook on his profession is not the courts. This is what Mr. Justice seems to be blithely assumed with
likely either to attract clients or Holmes had in mind when he said, disastrous results that every student
serve them well, nor will he ever en "Prophecies of what the courts will coming to law school is a born Web
joy the solid and durable satisfac do in fact, and nothing more pre ster or Choate. Clearly somewhere in
tions that come from a well-rounded, tentious, are what I mean by the the course of his professional train
complete life in the law. law." This may not have seemed
ing our complete lawyer must learn
What, then, are the functions of a pretentious toHolmes, but what pro the arts of advocacy.
great lawyer? fession demands greater skill inmeet 3. The third task of the great law
1. First of all, a truly great lawyer ing its obvious requirements? yer is to do his part individually and
is a wise counselor to all manner of 2. Next the great lawyer is a skilled as a member of the
organized Bar to
men in the varied crises of their lives advocate, trained in the art of prose his
improve profession, the courts,
when they most need disinterested cuting and defending the legal and the law. As President Theodore
advice. Effective counseling neces of men both in the trial courts Roosevelt
rights aptly put it, "Every man
involves a thoroughgoing and on appeal. Unless a lawyer has owes some of his time to the
sarily upbuild
of the principles of the had experience as an advocate, it is
knowledge ing of the profession to which he be
law not merely as they appear in the difficult to see how he can be a longs." Indeed, this obligation is one
books but as they actually operate in thoroughly competent counselor, for of the great things which distin

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The Five Functions of the Lawyer

guishes a profession from a business. his contemporaries that Lindbergh say that the law schools generally
soundness and the necessity of was undoubtedly an expert on air are not
The doing what they should be
President Roosevelt's admonition in planes and that he could certainly doing to prepare their students for
sofar as it relates to the legal pro count to 30,000? No individual class the third function of the lawyer
fession cannot be doubted. The ad in our society is better able to render improving his profession, the courts,
vances in natural science and tech real service in the molding of public and the law.
nology are so startling and the opinion. I shall limit my remarks to a single
locity of change in business and in 5. Finally,every great lawyer must phase of this responsibility?improv
social life is so great that the law be prepared, not necessarily to seek
ing the work of the courts. Is it not
along with the other social sciences, public office, but to answer the call the responsibility of the law schools
and even human life itself, is in for public service when it comes. The to teach procedure with due regard
grave danger of being extinguished attorney whose professional thoughts to the realities of the law? When I
by new gods of its own invention if begin and end with his own private was a law student, the teaching of
it does not awake from its lethargy. clients is a pitiable mockery of what the procedural law was limited to
A few law professors have pondered a great lawyer
really is.Training for common law pleading and evidence.
long and hard on these problems, public service is a
lifelong career. All I can remember from our study
but the law schools by and large There is no sadder sight in the legal of demurrers, traverses, pleas in con
have done nothing about thematter profession than that of a lawyer who fession and avoidance, novel assign
beyond an occasional unpopular and has long dreamed of unselfish
public ment and departure (the chief topics
generally ineffective course in legal service but who has been so engrossed we studied) is that itwas demurrable
ethics. in serving private clients that when to plead that one threw a stone
4. In a free society every lawyer has the call does come to him for a public but that it was not demur
a fourth career he has so lost contact with the
responsibility, that of act rable to plead that the events alleged
as an
ing intelligent, unselfish leader spirit and problems of the day that occurred on the Island of Minorca,
of public opinion?I accent the qual his efforts in the public interest prove towit, at London, in the parish of St.
ities "intelligent" and "unselfish"? abortive. What should have been a
Mary le Bow in the ward of Cheap,
within his own particular sphere of crown of laurel
frequently turns out provided
one did it under a videli
influence. In our complicated age to be one of thorns. cet! All of this seemed to me then
sound public opinion ismore indis These five?counseling, advocacy, and, after thirty-four years of prac
pensable than it ever was; without improving his profession, the courts tice largely in the courts followed by
it even courageous and the law, leadership in
leadership may molding some years on the Bench, still seems
fail. Did not President Franklin D. public opinion and the unselfish tome an utterly inadequate prepara
holding of public office?are the es
Roosevelt warn us as as Octo
early tion for understanding what is going
ber, 1937, over four years before sential functions of the great lawyer.
on in the courts today. The course in
Pearl Harbor, in his quarantine Education in these five functions of
evidence was devoted to telling us
speech in Chicago, of the dangers the lawyer is partly the province of
how to keep evidence out of the
ahead? And did not the newspapers the college, partly the
duty of the case, but what I needed when I first
of both parties throughout the coun law school, but in large measure it is
went to court was someone to tell
try condemn his speech as war the responsibility of the individual
me how to get it in!
mongering? And did not Charles lawyer not only while in law school
in February, What the law student most needs
Lindbergh 1939, over but throughout his
working years.
six months before the outbreak of This is practicing law in the grand in these days when the courts are so
World War II in Europe, warn the manner?the much under attack is to be told
only way it is worth
English that he had actually seen 30, practicing. quite frankly, first,of these shortcom
000 warplanes in Germany? And did ings and, second, of his responsi
Are the Law Schools
not the English practically drive him these shortcom
Preparing Men for the Profession? bility for correcting
from the country for telling them, has never been
ings. The picture
formerely telling them, a fact that These are days of great debate con so well as by Dean Pound in
was of supreme
importance to their cerning whether the law schools are his memorable address at the Ameri
individual welfare and to their sur doing their part in preparing their can Bar Association meeting in St.
vival as a nation? students for the profession. Chiefly "The
Paul in 1906, concerning
How different might history have the debate rages around whether the
Causes of Popular Dissatisfaction
been and our life today, if only one law schools should teach not merely of Justice".1
with the Administration
American lawyer in each city had "the what" and "the why", but also
You should first read Dean Wig
written a letter to his paper or made "the how" of the law just as themed introduction to this
more's moving
a speech supporting the President or ical schools teach "the how" of medi
speech, written thirty years after
if an English barrister in each com cine and surgery. I must not engage

munity in his country had reminded in that debate, but I do venture to 1. 29 A.B.A. Rep. 395-417 (Part 1, 1906).

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The Five Functions of the Lawyer

ward, to get its full significance.2 If I and so do the litigants, the witnesses,
had my way, I would make it pre and the newspaper reporters?every
scribed reading once a year for every body except the judge. I am speaking
judge, practicing lawyer and law only of my own state in the old days,
professor and law student on the day and there are some New Jersey law
he returns from his summer vacation yers here who know I am not exag
and starts a new
year of
professional gerating. hear peals of
You could
activity. laughter emanating from the judge's
It should be added that since 1906 chambers, and when His Honor
the American Bar Association has emerged about half an hour later, he
made honorable amends for its recep would very seriously tell us he had
tion of Dean Pound's speech by fur been detained by important work in
the leadership that has chambers. But you knew, despite his
about the solemn assurance, that he had been
brought drafting and pro
mulgation of the Canons of Profes listening to some storyteller recount
sional and Judicial Ethics. It has led ing the jokes he would tell in his
the fight against Theodore Roose next
ArthurT. Vanderbilt
velt's campaign for the recall of How did wein New Jersey get
that he doesn't and vice versa.
judges and of judicial decisions, away from that sort of delay? Our enjoy,
raised the standards of legal educa Court used to start at ten The second result from the power
to assign judges is that?and this is
tion throughout the country, agitated thirty, so we concluded that ifwe set
for years for the Federal Rules of an example by starting at ten o'clock something you will have to take on
Civil Procedure, opposed President at the state capitol, there would be faith because it doesn't sound pos
Franklin D. Roosevelt's no reason why every trial judge sible until you see it tried?if you
proposal for
should not get on the bench by ten have Judge A sitting in Courthouse
packing the United States Supreme
o'clock in his county. In short, a good A and Judge B sitting in Courthouse
Court, aided in the establishment of
the Administrative Office of the overcame that kind of de B, each operating from a separate
United States in
Courts and the list of cases, they will try a certain
movement for the promulgation of number of cases. Yet if you put
The second kind of unnecessary
the Federal Rules of Criminal Proce Judge A and Judge B in the same
delay is in getting cases on to trial
courthouse and let
them operate
dure, and brought about the passage after the pleadings and the neces
of the Federal Administrative Pro from a common list, they will try
sary preliminaries in preparation for
half again as many cases as they did
cedure Act. the trial are complete. Almost every
sitting alone in different court
What can the lawyer, what can the where you will hear the cry, "But
we need more houses. You can continue the process
law school student do about improv judges." Well, that
be true now and but I up to the limit of trial judges avail
ing the administration of justice? may then,
able, the number of courtrooms
Well, the first and greatest complaint think in most states you will find
available, and the number of trial
against the courts is what is known, that there are enough judges if the
lawyers available. There is some
euphemistically, as the law's delays. I chief justice is authorized to shift the
thing about having a lot of
say "euphemistically", because the trial judges from court to court as judges
"law's delays" is the polite phrase needed. There are always counties working together on an active inte
not as much business grated list that makes for the rapid
for the delays of judges and lawyers. where there is
disposition of cases. Don't ask me
While I am going to speak princi as in other counties; there are al
why it is so for I don't know, but I
pally about the delays of judges, let ways courts in the larger counties
do know that it is so. It works that
me say that it is the delays of lawyers that are not as busy as some other
that are largely responsible for delays courts in these counties. way.

of judges. the first thing you But the right to assign judges
need to do to overcome delay in get alone will not clear up court conges
The Three Kinds tion. To that you must add pre trial
of Legal Delay ting cases on to trial is to give the
chief justice or a presiding judge the conferences.

Now, what can we do about the de power to assign the judges where The pretrial conference is an insti
lays of the law? Well, those delays
they are needed, and to the kind of tution that is probably more mis
are of three kinds. The most irritat work, moreover, that they are best understood than anything else in
ing delay of all to the lawyer and the fitted to do. Of course, there is noth our procedural law. In its fully de
layman alike is the delay of the judge ing more detrimental to good judi 2. 20 J. Am. Jud. Soc. 176 (1937): both Dean
in getting on the bench on time in cial work than assigning a judge who Pound's address and Dean Wigmore's Introduction
themorning. The jurors have to be are reprinted in Vanderbilt, Cases and Other Ma
is good with a jury?whether in civil
terials on Modern Procedure and Judicial Admini
there, the lawyers have to be there, or criminal work?to
equity work stration, 28-49 (1952).

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The Five Functions of the Lawyer

veloped sense itmeans that after the the plaintiff can't lose or the defend aside, and all of it would disappear
a case have ant can't lose, it begins to be one that from his mind as he went on to the
lawyers on each side of
consulted with each other about the has a monetary value in terms of a trial of other cases.

issues of law and fact in the case, they settlement. But that is not the most I submit that a trial judge will
a con never know as much about the case
come before the judge in open court. important result of pretrial
over the ference, for month in and month he is trying as he does after he has
The judge, having looked
and listened to each side's out, in county in our state read the trial briefs, after he has
pleadings every
outline of its case, proceeds to state suburban and rural heard the evidence and after he has
the issues, shaking out of the case any three quarters of the cases are settled listened to the argument of counsel.
nonessentials in the pleadings. He between the date of the pretrial con Then, if ever, themoment of decision
then proceeds to discuss with the at ference and the date when the case has arrived. If he lets it go until the
goes to trial two weeks later without next day, he is going to start off on a
torneys what proofs may be stipu
lated. He asks, "What documents are the judge saying a word about settle new case, and then another case and

you going to introduce in evidence?" ment. then still another case, and each case
there is no dispute about But settlements are not the most he tries will render the facts of the
such documents; accordingly they are important thing about pretrial
con indicated case still dimmer in his
a number in evi nor the fact that short
produced and given ferences, mind.
dence, so that they will be ready en the trial of cases from a third to Thus, in my state we have a rule
for presentation at the trial without a half. The great, important thing that the lawyers must file their briefs
is that in advance. If the judge doesn't
calling the attesting witnesses. In about pretrial conferences
automobile cases, the the judge knows what the case is decide the case within twenty days
about from the beginning. If it in after oral argument, he must indi
ownership of the car and the agency
of the driver are generally stipulated volves some proposition of law that cate the reason on his weekly report.
and likewise the damages to the car, he is not familiar with, he can order And here is a strange bit of judicial
when the main issue is liability for briefs in advance, so that before the psychology?even the hardest pressed
trial starts he will know as much would rather write out an
damages to the person of the plain judge
tiff. about the law of the case as the law opinion than to write down in his
This process of consultation re yers do. That, as you see, also helps report
some reason
he hasn't

sults in a pretrial order which de the lawyers because otherwise they decided the case. Thus, almost all
fines the issue, provides for any nec would not prepare their briefs until cases are decided promptly and the
some later date, hoping to avoid
essary amendments to the pleadings
law's as we have
unnecessary delays,
and states the admissions of each their preparation. Thus the assign seen, are

side. It is dictated in open court and ment of judges where needed and the
Rules of Procedure
signed by the judge and the lawyers. holding of pretrial conferences are Should Be Court-Made
The remarkable thing about it all simple ways of avoiding delay in
Next to the law's delays, nothing
is that at the end of a pretrial con getting cases on to trial.
ference very often the plaintiff's The third great cause of the law's irritates the public as much as de
comes after the case is tried cisions based on technicalities of pro
lawyer for the first time really under delay
stands the plaintiff's case. This state and the judge says the fatal words, "I cedure and pleading. How can we
ment is not meant to be humorous will take the matter under advise prevent such decisions which fail to
because the case may not have been ment." I have waited in the old days dispose of the controversy on its
two years, four years, six years, eight merits? Well, the easiest way to elim
prepared by the plaintiff's lawyer at
inate them is to allow your court
all but by some bright young man in years, ten years for decisions in our
his office. It is highly desirable, you Court of Chancery. We have had a of last resort to make the rules of
see, that the plaintiff's lawyer should lot of Lord Eldons in New Jersey. procedure rather than to have a leg
know his case before he attempts to They were aided and abetted by islative code. If there is a code, the

try it, and that is one of the good many a prospective Lord Eldon at judges feel that they are bound to
results of a pretrial conference. For the Bar, who would wait until the follow the code literally and exactly.
the first time, too, he gets a proper end of the case, and then would say, If there are judicial rules of pro
"Your Honor realizes now that this cedure instead of a code, they are
perspective on the defendant's case.
is a complicated case, and I wouid not only likely to be better
Pretrial Conference for litigation, but they are made by
like to submit a brief to help Your
Leads to Settlements
Honor. I would like a month's time." judges and they will
interpreted be
Likewise the defendant's lawyer for The defendant would want a month by judges. They always contain, or at
the first time gets a true concept for an answering brief, and the least should always contain, a pro
of his own and his adversary's case. at least two weeks for a vision that the purpose of the rules
plaintiff reply
Suddenly it dawns on each of them brief?two and a half months in all. is the advancement of justice and
that instead of this being a case that The judge would push the case (Continued on page 76)

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The Five Functions of the Lawyer

The Five Functions first jobs is to make your professor 28 per cent are wrong in their im
of the Lawyer of procedure conscious of that fact, pressions of their judges?I would
because he is probably taking it for stake my life on that statement?but
(Continued from page 34)
a the fact that the public thinks they
the prevention of delay and that they granted that that is necessary and
natural to try a case. You can be are dishonest is just as bad from the
are to be construed to that end with way
the privilege of waiving them when gin to improve the work of your standpoint of respect for the law
courts right away by asking, "Why if theywere in fact so.
they would work injustice. Rules of
cannot we give our trial judges real Why does the public have that
court make for avoiding decisions
on technicalities. The power as they do at common law and tion? Obviously, it gets the notion
a continuous
in the federal courts and inmany of because your local police judges,
must be
process process,
and there should be some body in
the states?"
your local justices of the peace, and
the state, either a judicial conference Another major cause of complaint your county judges in many states
or a judicial council, which reviews about our courts is the occasional are forced to run for election on a
manners travel around
the rules annually to see if they can bad of judges. Some partisan ticket. They
be improved in the light of experi judges are just constitutionally cross with the candidate for governor, for
ence. grained. They never should have senator, for Congress, and for the
been permitted to get on the Bench, state legislature, and all the other
Most of all in this country we need
and there should be some method de fellows running for election, and
fo give the trial judge real power.
vised for getting rid of them. One they attend political meetings, din
Believe it or not, there are over
of the things that makes judges ir ners and clambakes. How can the
twenty-five states in theUnion where
the trial judge is not allowed to ritable, I am told, is the pressure of people think the judge is any dif

comment on the evidence, where work. When a judge is conscious that ferent from all the rest of the politi

he is not allowed to ask

he has twenty-five or thirty cases un cians who are running for election?
even though neither plaintiff's nor decided, how can he be cheerful Those who are informed know that
when he says, "Good morning"? He the county judge is the smartest of
defendant's counsel has brought out
just can't be, because he has missed these politicians and probably is
what the judge sees is the pertinent
the moment of decision in those planning the whole campaign. In
fact concerning which a particular
witness should testify. In these states twenty-five or thirty undecided cases, deed, in certain states it is admitted
and he realizes that he will never do in the county that the
the judges are not allowed to sum by everybody
as well as he might have done in
up in their own language to the county judge is the unofficial head
these cases. of the dominant political party. In
but, on the contrary, they take
one Another thing that makes some fact, if he isn't, he isn't going to be
their instructions from either
or the other of the trial counsel, and judges irritable is the consciousness re-elected when his term expires.
that is called a charge. that they are subject to political That is how the public gets its no
Also, in these states, just to make pressure. We all like to be free and tions about its local judges who run
independent, but if you happen to
sure that reading these writen in in political primaries and elections.
be an unfortunate judge who is sub
structions doesn't amount to any Does it not suggest to us that in
ject to politics?and I have had
thing, the code of procedure pro every state we should carefully ex
judges tell me that they know what
vides that the judge must give his amine the method of the selection
that means?that makes for bad man
charge before counsel for the defend ners. So the thing to do is to get rid
of judges?and that goes for the ap
ant and counsel for the plaintiff
of political pressure. pointed judges as wellas elected
sum up to the jury. Now, if I were If the governor
is not sup
That brings us right to the heart judges?
to stand here and mumble seven or and
ported buttressed by the strong
of thematter. To have good judicial
eight typewritten pages of legalis opinion of the Bar to appoint the
tic requests to charge and that was to administration, to have good judges,
you need judges who know the law, right kind of judges, you won't or
be followed by two impassioned ad
you need judges who can think, dinarily get them by the appointive
dresses by other lawyers, I submit
you need judges who can express process any more than you will
that no jury would remember a
elections. But we
themselves, you need judges who are through partisan
single word that I had said. They need more than good judges. We al
would merely remember that the diligent, you need judges who are
so need
other lawyers had said it all better honest, and you need judges who the jurors who are representative
of the honest and intelligent citizenry
than I had because they had been public believes are honest. Those are
all reasonable of the county if the fact-finding of
talking to them and I
was only read qualifications, and yet
in a national our courts is to be done
ing. poll taken not too long properly.
This putting of the trial judge in 28 cent of those questioned These are some of the
ago, per pressing
a strait jacket occurs in over one half said in so many words that they did problems in the administration of
of our states. If you come from one not think that their local and county justice that you should keep in mind
of these backward states, one of your in law school as well as in practice.
judges were honest. I know that these

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The Five Functions of the Lawyer

Our system of popular government engage your attention from your results are all attainable if you pur
cannot survive without a clear rec earliest days in law school. Above sue the law in the spirit of Mr. Jus
ognition of the supremacy of law. and beyond all that, you need to cul tice Holmes. Let me end by quoting
Sound procedure in the courts is tivate from the beginning an active him:
as sound sub and intelligent interest in public "Law is a business towhich my life
stantive law. These problems all re affairs if you are to be great lawyers, is devoted, and I should show less
late to improving the administration so as to as leaders of public than devotion if I did not do what
of justice, but there are many other opinion and eventually as our leaders inme lies to improve it, and when I

equally important points relating

to in public office. perceive what seems tome to be the
the betterment of the profession and Interest and action with respect ideal of its future, if I hesitated to
the adaptation of our substantive law to all of these matters are essential point it out and press toward itwith
to the needs of the times that should to the great lawyer, and the desired all my heart."

The Reed-Dirksen Professor Cory's

ance with ability to pay", as inter
Amendment Five Questions and
preted applied by its proponents,
Professor Cary closes his article by unsound. It is not an eco
(Continued from page 38) utterly
nomic concept having any defined
corporations to 37 per cent,
(2) asking the proponents of theAmend
ment five limits or based upon any scientific
to reduce the 52 per cent rate on questions, which, speaking
the large corporations to 45 per cent. for myself only, I would answer as principle. The sound and justifiable
follows: method of taxing income is at a
The first course would increase the
1. Do flat or proportional rate. To quote
revenue. The second course would Question they oppose high
taxation regardless of government Dr. Harley L. Lutz,
reduce it by a little less than $3
billion. This is equal to the revenue expenditures and consequent deficit This, indeed is what Adam Smith,

from a manufacturers' excise tax of in a period of the highest the originator of the whole ability
His first maxim of
to all end prod prosperity in our history?
cent concept, proposed.
214 per applied taxation, which has been the source of
ucts of manufacture, except food, Answer. I regard balancing the to pay doctrine, was in
the ability
food products and liquor and to budget as of fundamental impor part
as follows: "The subjects of every
bacco. It is equal to the revenue tance. I oppose, however, attempting state ought to contribute towards the
of the government as
from a retail sales tax of less than to do so in the communist or socialist support nearly
as in proportion to their re
2 per cent. way by confiscatory rates of income that is, in proportion
spective abilities;
In this discussion I am disregard and death taxes, for the reason that to the revenues which they respectively
ing the excess profits tax, for such course will in due time lead to enjoy under the protection of the
reason that it appears to be rather the production of less revenue than state. [Italics
most harm
generally agreed that it is moderate rates and will ultimately As I have pointed out, however,
ful to the economy and that there does not
destroy our system of private enter the proposed Amendment
is very little likelihood it will ever tax rate It
prise. prohibit progression.
be re-enacted. In the language of 2. Do limits its
Question they oppose pres merely degree.
Secretary of theTreasury Humphrey, ent high surtax brackets under the Question 3. Since there is rela
"The worst enemies of the excess
individual income tax and merely tively little progression in the corpo
can voice our feelings
profits tax ask to have the rates lowered, or do ration income tax structure, should
about it." It was scheduled to ex a same
but at the they deny the basic principle of ceiling apply in exactly the
pire on June 30, 1953, to and thus to and to indi
ability pay any form of pattern corporations
insistence of President Eisenhower
that the revenue was needed to help progressive taxation?
Answer. As I have stated in my Answer. If I understand themean
balance the budget the expiration
answer is
date was extended to December 31. first two articlespublished in the ing of this question, my
it and March, 1953, issues of that the ceiling should not apply
The amount of revenue which January
the Journal, I consider the so-called in exactly the same pattern to corpo
was estimated the tax would produce
principle (if itmay be dignifiedby rations and to individuals. This I
six months of 1953
during the last
was $800 million. such a title) of "taxation in accord have already discussed.

January, 1954 Vol. 40 77

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