Brief Idea

To mark the 150th anniversary of Louis Brandeis’s birthday, Adam Cohen has  a neat oped in the NYT on the Brandeis brief.

For Brandeis, raw data was always key. Oliver Wendell Holmes, his distinguished senior colleague, once complained that Brandeis “drove a harpoon into my midriff by saying that it would be for the good of my soul to devote my next leisure to the study of some domain of fact — suggesting the textile industry.” Holmes protested, “I hate facts,” but grumpily took a government report along with him on his summer vacation.

The Brandeis brief today bears the truest mark of a transformative idea: as radical as it was in its time, today it looks thoroughly conventional. Generations of litigators were quick to adopt its approach. The civil rights lawyers in Brown v. Board of Education prevailed in large part because of their Brandeisian briefs that presented social science data on the effect of segregation on black children.

A classic Brandeis brief is when an outside expert provides a report to the court, to help it better consider the case. Yet sensible as this sounds, the High Court of Australia still does not accept Brandeis briefs. If you’re not a party to the case, then no matter how useful your information, the court doesn’t want to hear from you.

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6 Responses to Brief Idea

  1. Sinclair Davidson says:

    ‘the court doesn’t want to hear from you.’

    How does this differ from ‘standing’? Why can’t entrepreneurial data collecters sell their information to one of the parties to the dispute (in Australia)?

  2. Andrew Leigh says:

    Sinc, that’s exactly the point. Strict standing rules mean that courts will only hear from parties, not outside bodies. Unfortunately, sometimes the public interest doesn’t neatly coincide with the views of either litigant.

  3. Sinclair Davidson says:

    I thought Australian courts accepted ‘friends of the court’ briefs. Anyway, I suspect there is some or other trade-off here and stricter ‘standing’ rules would probably shorten proceedings and also make them less divisive by limiting the parties in the dispute. Is there a literature on this point?

  4. derrida derider says:

    Yeah, you can see they don’t want to turn things into a public inquiry with Uncle Tom Cobley and all presenting argumentative submissions. And amicus curiae briefs are pretty common.

  5. Seneca says:

    If Brandeis briefs were allowed, wouldn’t this just create contests between different expert hired guns? It seems a big assumption that both sides could agree on an impartial expert, especially in the social sciences.

  6. Patrick says:

    They do accept intervener bids! They did in the copyright cases, or so I thought, and in that APLA case. Justice Gummow is keen on them, I had understood, as long as they present information to the case in point and not general public interest dreck, which is irrelevant to the Australian judicial model.

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