How evidence became the winning argument


The first thing most people think of when they hear the name Louis Brandeis is his role as the first Jewish Supreme Court justice. For lawyers like me, who work on appeals, a close second is the concept of a “Brandeis Brief,” a style of advocacy that focuses more on empirical evidence than strict legal doctrine.

Before his appointment, Brandeis was known for taking on cases of great public importance, including efforts to tame the excesses of business.

One such case was Muller v. Oregon, in which a laundry owner challenged a state law that protected women workers by limiting their workday to 10 hours or fewer.

The obstacle was the now-discredited case of Lochner v. New York, which held that the Constitution protected freedom of contract and therefore invalidated a state law limiting work hours.

Brandeis realized that the only way to win the Oregon case was to persuade the Court, through the submission of extensive medical, economic and social science data, that special protections for women were appropriate.

Some of the research we now see as rather dated — did people really once believe that women’s blood and muscle was more “watery” than men’s? But the novel approach succeeded, and the court commented favorably on the “very copious collection” of “expression of opinion from other than judicial sources.”

The case opened the door for other workplace protections to survive. Brandeis Briefs have since helped the courts in all manner of litigation, including efforts to achieve greater gender equality.

The backstory to how this brief came about also is worth recounting. In the early 20th century, the National Consumers League was an organization dedicated to promoting decent working conditions. Among its leaders were Florence Kelley and Josephine Goldmark, the latter of whom happened to be the sister of Louis Brandeis’ wife, Alice. It was Goldmark and Kelley who asked Brandeis to come to the defense of an Oregon law at issue in Muller v. Oregon.

Brandeis had limited time to prepare the brief. So it was Goldmark and her colleagues at the NCL who gathered the “copious” evidence that Brandeis would use. Biographers of Florence Kelley credit Goldmark with “authoring” most of the brief that Brandeis submitted.

She performed a similar role a few years later in the case of Bunting v. Oregon, which challenged a separate Oregon law that had been enacted to protect male and female workers. In this second assignment, Goldmark worked first with Brandeis and then, upon his appointment to the Supreme Court, with Felix Frankfurter, who went on to become the third Jewish Justice on the U.S. Supreme Court. On that case, the “brief” was nearly 1,000 pages.

Laura W. Brill is a media law and appellate litigator, who writes frequently on legal issues. She served as a law clerk to Justice Ruth Bader Ginsburg

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