Brandeis Brief

Brandeis Brief As counsel in Muller v. Oregon (1908), Louis D. Brandeis, then a well‐known attorney and social activist, submitted a lengthy brief supporting the constitutionality of an Oregon statute that limited the hours per day that women could work in laundries and other industries. The Brandeis brief led to important changes in legal analysis and Supreme Court litigation.

The Muller brief devoted a mere two pages to discussion of legal issues; the remaining 110 pages presented evidence of the deleterious effects of long hours of labor on the “health, safety, morals and general welfare of women.” This evidence was culled from medical reports, psychological treatises, statistical compilations, and conclusions of various legislative bodies and public committees by Brandeis's sister‐in‐law, Josephine Goldmark, and several of her colleagues from the National Consumers' League. Surprisingly, the conservative David J. Brewer, who wrote for the majority in Muller, noted the contribution of the brief favorably.

The Brandeis brief was unprecedented. Brandeis used it to demonstrate that there was a reasonable basis for the Oregon statute. In several prior decisions, most notably Lochner v. New York (1905), conservative Supreme court justices were only too willing—as Brandeis and other Progressives complained—to impose their own beliefs about what constituted reasonable legislation. The Muller brief's analysis was consonant with the fact‐oriented “sociological jurisprudence” of the Progressive era. It forced the Court to consider data that state legislators employed in drafting reform laws.

The success of the Brandeis brief led to subsequent efforts by Brandeis and other lawyers to support of a wide range of economic legislation. Even lawyers representing interests opposed to Progressive regulation used the Brandeis techniques to attack such laws. The Brandeis brief has also seen service in contexts far removed from economic regulation and thus has become a staple of litigation before the Supreme Court.

See also Gender; Progressivism.

John W. Johnson