The
Brandeis Brief was filed in the United States
Supreme Court in the case of
Muller v. Oregon,208 U.S. 412 (1908). The case was a challenge to an
Oregon law limiting the maximum number of hours of work for female laundry workers to ten (10) hours a day. The court had just a few years earlier struck down a similar New York law limiting the hours for bakers.
Lochner v. New York, 198 US 45 (1905). Oregon’s law was different because it protected only women, and thus, given the paternalistic attitude of the Court, there was some chance of having a worker-protection law upheld.
Oregon had another advantage: Oregon was represented by Louis D. Brandeis. Brandeis put Harvard Law School Dean Pound’s “sociological jurisprudence” into action, with a brief that included only two pages of legal citations, but pounds of statistical, sociological, economic, and physiological information --and this in the days before photocopiers! In its opinion in favor of Oregon, the Court described the brief in a footnote as follows:
Then follow extracts from over ninety reports of committees, bureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and in Europe, to the effect that long hours of labor are dangerous for women, primarily because of their special physical organization. The matter is discussed in these reports in different aspects, but all agree as to the danger. It would, of course, take too much space to give these reports in detail. Following them are extracts from similar reports discussing the general benefits of short hours from an economic aspect of the question. In many of these reports individual instances are given tending to support the general conclusion. Perhaps the general scope and character of all these reports may be summed up in what an inspector for Hanover says: 'The reasons for the reduction of the working day to ten hours-(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home-are all so important and so far reaching that the need for such reduction need hardly be discussed.'
The tactic of packing the record with an enormous pile of sociological material, rather than mere legal argument, became known as the “Brandeis Brief”. Addressing the sexist attitudes of the judiciary had to wait, at the very least, until after women got the vote (the 19th Amendment was not ratified until 1920).