Louis Brandeis - innovator - The Brandeis Brief

Today's Times Book Review carries a review of the new biography of Louis D. Brandeis by Melvin I. Urofsky. Alan Dershowitz correctly notes the impact on the practice of law made by Brandeis's innovation.

Brandeis filed the now legendary Brandeis Brief in the United States Supreme Court in Oregon in Muller v. Oregon, 208 US 412 (1907). He defended the State of Oregon's law limiting the hours of female laundry workers by citing an array of medical and sociological articles about the health risks to female workers.

The most famous use of the technique was in the petitioners' brief in Brown v. Board of Education. A "Social Science Statement of Counsel" was appended to petitioners' brief. It summarized the evidence that `separate but equal' schools were inherently unequal because legal segregation stigmatized black students and retarded their development. The materials were cited in Footnote 11, supporting the momentous repudiation of Plessy v. Ferguson:

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system." 10

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. 11 Any language [347 U.S. 483, 495] in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

The technique became routine. In my own practice, in cases like Collins v. Union County Jail, our friend of the court brief relied almost entirely on evidence from medical and psychological literature on rape trauma. In the New Jersey Supreme Court we successfully argued on behalf of the National Organization for Women that the New Jersey Tort Claims Act's limitation of actions against government to "loss of a bodily function" necessarily comprehended purely psychological injury - since that was the central impact of rape - which infrequently causes permanent physical harm.