For Brandeis, raw data was always key. Oliver Wendell Holmes, his distinguished senior colleague, once complained that Brandeis â€œdrove 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 â€” suggesting the textile industry.â€ Holmes protested, â€œI hate facts,â€ 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.