The Original “Brandeis Brief”

Louis Brandeis’s brief in Muller v. Oregon, 208 U.S. 412 (1908), is famous for being the first so-called “Brandeis brief” — a legal brief heavily based on social science data. I don’t think I had actually seen Brandeis’s Muller brief, but it’s available in .pdf form here (albeit in short chunks, unfortunately) .

Muller concerned an Oregon law limiting the hours women could be made to work in a factory or laundry. Muller was fined for making a female employee work more than 10 hours a day in his laundry, and he argued that the law was unconstitutional under Lochner v. New York. Under Lochner, Brandeis had to show that the relevant law satisfied a heightened scrutiny standard — in effect, that the relevant law interfering with freedom of contract was really needed. So the brief is devoted to establishing that women really are the weaker sex, and that they need the special protection of the law even if it would be unconstitutional to restrict the hours men could work under Lochner.

By modern standards, it’s a very strange brief. It goes on for over 100 pages, and it consists almost entirely of quoted paragraphs from experts, legislators, and statutes, both domestic and foreign. It then has all of one sentence of argument, on the last page, page 113, in which Brandeis just says that based on this evidence the law is constitutional. Not quite what I was expecting. But I thought it might be of interest to the con law nerds anyway.