The Brandeis Brief

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I’m teaching Muller v. Oregon (1908) on Thursday. For those who don’t recall it, it’s the case during the Lochner era in which the Court upheld a maximum hour statute because the statute applied solely to women. The opinion has all sorts of paternalistic drivel and concludes as follows:

The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future wellbeing of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her.

What the case has become most famous for is the “Brandeis Brief,” the amicus brief filed by then-attorney Louis Brandeis. It gives the Court the fodder for its paternalism, with all sorts of “evidence” that women are weaker than men and need special protection. It’s a good jumping off point to talk about the way the Court treated women as well as the role of amicus briefs in constitutional litigation. And, courtesy of the Library at the University of Louisville Brandeis School of Law, the brief is available online here. For those interested in the case, the era, the evolution of amicus briefs, Louis Brandeis, and women and social movements of the time, it’s an interesting read.

- David S. Cohen

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0 Responses to The Brandeis Brief

  1. Eric says:

    What a wonderful resource. It will be a nice supplement to both of my Spring courses (Employment Law; Social Research & Law). Thanks.

  2. lupus29 says:

    Far better if Brandeis had been less paternalistic. Of course, by arguing solely on precedent, the poor laundry women in Oregon would have continued to face 11-hour days for pittances. But, hey, let’s not be paternalistic.

  3. fredg says:

    Paternalistic, anti-feminist, yes it is. But it was women, not men, who were responsible for this. While Brandeis conceived of the technique which became the Brandeis brief, he only wrote three pages of the 113 page brief all of which was devoted to legal issues. The remaining 110 pages which discussed the medical, physical and social harm caused by women working long hours were the work principally of his sister-in-law, Josephine Goldmark, assisted by women of the National Consumers League and its affiliates, organizations dominated by highly educated, middle class women whose goal was to seek social justice, and in this case to improve the terrible working conditions which women had to endure. Thank God for such people. They fulfilled our democracy.