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Report No. 99

3.16. Brandeis brief.-

The most celebrated breakthrough involving use of this approach was the brief prepared by Louis D. Brandeis and presented to the Supreme Court in Muller v. Oregon, (1908), in which Brandeis was defending the constitutionality of a state law setting ten hours as the maximum working day for women. This brief, the usefulness of which the Court specifically acknowledged in its opinion, gathered an enormous amount of information on foreign and American laws limiting hours for women and on governmental reports stressing the dangers to women from long hours of labour.1

As has further been pointed out, there is a difference between litigation involving disputes about individual action and cases dealing with entire classes or groups, where the subject of controversy is the application or validity of social or economic legislation aimed at establishing governmental control over conduct or where public policies are attacked in court as violating constitutional standards. In such cases, the "facts" often concern attitudes or opinion or social practices or economic conditions. When courts must find facts of such breadth, the usual practice of relying on testimony from the mouths of eye witnesses or participants becomes both inadequate and inappropriate. Different kinds of evidentiary-indeed, different kinds of evidence-must be available, if judges are to decide such issues intelligently.2

1. Murphy and Pritchett Courts, Judges and Politics, 2nd Edn., p. 350.

2. Murphy and Pritchett Courts, Judges and Politics, 2nd Edn., p. 348.

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