Submitted in
1908 in support of an Oregon law setting maximum hours for laundresses, Brandeis
Brief is the most prominent example of sociological jurisprudence. In a series
of decisions, and most famously three years earlier in Lochner v. New York
the Supreme Court had closely scrutinized various pieces of economic legislation,
invalidating almost all of them as means not closely tailored to the ends they
sought to achieve, hence, unconstitutional interference with the freedom of contract
(or with private property). Brandeis believed that his task in Muller v. Oregon
(208 U.S. 412 (1908) was to obtain a sympathetic hearing for the facts supporting
the legislation, for that would show that the means fitted the end. "Traditionally,
briefs had been compilations of legal citations and earlier decisions and had
emphasized that courts should follow existing law. Brandeis, however, wanted to
make the point that innovative laws also could be valid. The brief he and Josephine
Goldmark put together gave short shrift to legal citations confining them to a
mere two pages. Instead, it included over 100 pages of factual information from
the United States and European countries to demonstrate that it was not unreasonable
to believe that excessive hours of labor were detrimental to the health of women
and their families ... [It brought together Brandeis’s] insistence that lawyers
had to represent the public as well as the privileged, as he did here, without
fee; his belief that law had to change along with and be based upon societal facts;
and his analysis of the differences industrialization had made in life and should
make in the law. The brief also reflected the conviction that the Constitution
had to be interpreted so as to allow legislative experimentation in the light
of new societal circumstances and that it was the lawyer’s function to delineate
those circumstances." The Court upheld the law. The term "Brandeis Brief"
has since "come to denote legal arguments relying heavily on factual material
to demonstrate that a law is not reasonable and that it therefore does or does
not fit within the mandate given to governmental bodies by the Constitution."
[Brandeis on Democracy, ed. Philippa Strum (1995), 66]