The Brandeis brief: a forerunner

In 1908, Louis Dembitz Brandeis (1856-1941) submitted a brief to the Supreme Court of the United States in support of the constitutionality of an Oregon law which limited the working day to ten hours for women.

In the words of John W. Johnson, ‘The Brandeis brief was unprecedented’ (Johnson, 1992, p. 85). It set out to ‘prove’ that it was ‘reasonable’ that the Oregon law met its stated objective of improving public health. Up to this time, the majority of American judges had limited their views of what was reasonable to narrow legalities. The brief was successful in persuading judges to take into account the kinds of materials from the social sciences that legislators used when they drafted laws. This is generally considered the first time the Supreme Court recognized the need for facts to establish the reas­onableness or unreasonableness of social legislation. In this, the United States was behind some other countries. German courts, for example, had recog­nized the importance of social facts earlier. As is the case in American legal proceedings, the brief was highly selective and one-sided. It was entirely consistent with the development of what came to be called ‘sociological jurisprudence’. Increasingly, legal systems throughout the world now take the findings of social science into consideration.

In recent years one of the social sciences, economics, has been the source of many significant legal changes. Although the knowledge provided by econ­omists has long been a source of law, both legal scholars and economists have contributed to the development of the separate discipline that is now called ‘law and economics’.

More significantly, Backhaus has shown that in many situations the meth­ods and results of economic theory have been developed into legal principles. In an important study (‘The German Waterpenny case’, 1997) he describes the workings of the German constitutional court. Just as the Brandeis brief set a precedent in the United States, so the theory of functions used by the German court allows it to accept almost any kind of scientific argument. In brief, the theory of functions requires that the basic function of the institution in question be not impaired.

At least for the United States and Germany, some of the indisputable results of law and economics research have become legally binding. Among the many fields in which this has happened are those where laws require risk­benefit analysis and environmental impact statements. It is not uncommon for legal principles based on economic theory to be invoked, as for example in cases where it can be shown that the economic effects of an action result in a violation of the intended effects of a law.