The Brandeis Brief Comes Under Attack

12Feb12

Here at the Louis D. Brandeis School of Law at the University of Louisville, the original “Brandeis Brief” is regarded by most as almost a holy text. Brandeis’ brief in Muller v. Oregon is generally considered to be the first brief submitted to the US Supreme Court that relied heavily on sociological data — in this instance almost to the total exclusion of legal argument. The fact that Brandeis won the argument, and that his brief was even mentioned in the majority opinion, is usually pointed to as evidence of the persuasiveness of the brief and fact-based arguments.

Professor David E. Bernstein of George Mason University thinks otherwise and has written an article in the Fall 2011 issue of The Green Bag, entitled “Brandeis Brief Myths.” Bernstein is the author of the book Rehabilitating Lochner, in which he makes the case that Lochner v. New York is a decision that was unfairly maligned by Progressive judges and legal historians. His Green Bag article is an extension of the research he did for that book in which he lists seven myths that have perpetuated in the narrative of Muller v. Oregon. Among the claims he makes are that Brandeis’ brief was not the first brief to make use of sociological data, that Brandeis was able to pretty much ignore the legal argument in his brief because the attorney general of Oregon covered that in his supplemental brief, and in fact that it was the Oregon brief that was more likely to have convinced the justices. As Brandeis’ argument was that working more than 10 hours in a day was more inimical to women than it was for men, Berstein also has some fun looking at some of the sources Brandeis cited in his brief, mentioning one that claimed that women had more water in their blood than men do.

Unlike other articles from The Green Bag that I have mentioned in this blog, this article is available online, so you can read (and judge) Professor Bernstein’s argument for yourself.

This is not the first time Brandeis’ brief has come under attack. Unsurprisingly, Brandeis’ paternalistic (to say the least) argument came under fire in the 1960’s from feminist scholars. Supreme Court justice Ruth Bader Ginsburg began practicing during that era and naturally has a few doubts of her own about Brandeis’ brief. She gave an hour long lecture about the brief and Muller v. Oregon in January 2011 for the New York Society for Ethical Culture. I just found a few weeks ago that C-Span broadcast the lecture and they have it posted online. See for yourself.

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