Use of noncase materials.

• Jurisdiction: United States

Section 60. Use of noncase materials.—The successful advocate is not limited to decisions and statutes, the latest case turned up in the digests, the most recent regulation spawned by a restless bureaucracy, or the last amendment adopted by the legislature. He is free to seek other materials to buttress his arguments, and will frequently find it helpful to do so. There will be discussed below, not at all exhaustively, the employment of noncase materials as authorities.

(a) Economic and sociological materials; the Brandeis brief. The classic instance of the use of economic and sociological materials in constitutional litigation, half a century ago, was in Muller v. Oregon,²²⁸ which sustained the validity of a state statute limiting the hours of labor for women. There Mr. Louis D. Brandeis, as he then was, filed a brief in which he collected a list of similar state and foreign statutes; "extracts from over ninety reports of committees, bureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and in Europe, to the effect that long hours of labor are dangerous for women, primarily because of their special physical organization"; and "extracts from similar reports discussing the general benefits of short hours from an economic aspect of the question,"²²⁹ all in support of the proposition that the legislation in question bore a reasonable relationship to the public health and safety—admittedly valid exercises of the police power. His success in that case, and the approbation that the brief received in the unanimous opinion written by that rugged apostle of laissez faire, Brewer, J., led to increasing use of the same technique in other cases.²³⁰

Perhaps the most expert development of what accordingly came to be known as the Brandeis brief was presented in Adkins v. Children's Hospital²³¹ and the Gold Clause²³² and AAA cases,²³³ though it may be that those decisions, equally with the later ones in West Coast Hotel Co. v. Parrish,²³⁴ and the several decisions upholding the National Labor Relations Act²³⁵ and the Social Security Act,²³⁶ were influenced less by what was collected in the winning briefs than by other less strictly scientific considerations. As one of losing counsel in the 1936 New York minimum wage case ²³⁷ remarked in 1937, after the West Coast Hotel decision had been announced, "Better a poor argument after election than a good one before it." Nonetheless, the Brandeis brief still has a considerable field for usefulness, even in today's climate of constitutional opinion. Thus, in the cases that refused enforcement to restrictive covenants,²³⁸ the Attorney General and Solicitor General of the United States filed a comprehensive brief that included full references to discussions of the social and economic effects of such covenants. And in the case upholding the constitutionality of the anti-communist affidavit provision of the Taft-Hartley Act,²³⁹ the brief in support of the statute collected a vast mass of nonlegal materials showing the reasonable basis for the view that neither the policies of the National Labor Relations Act nor the security interests of the country would be fostered by extending the benefits of the latter Act to labor organizations whose officers were Communists or supporters of Communist-dominated organizations.

(b) Defense against improper use of economic and sociological materials. Most imitations are inferior to the original, and numerous imitators of the Brandeis technique have perverted it to improper uses, using noncase materials in situations where they are irrelevant, and drawing those materials from unreliable sources. In any situation where an advocate is faced with what can only be called a pseudo-Brandeis brief, his best—indeed, his only —defense is to emphasize the limitations that surround the use of sociological and economic authorities.

First of all, the Brandeis brief is properly used only in situations where there is wide scope for legislative judgment, where "the guaranty of due process * * * demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained."²⁴⁰ In the words of Professor (now Mr. Justice) Frankfurter, written in 1931,

Until [Brandeis'] famous brief in Muller v. Oregon, social legislation was supported before the courts largely in vacuo—as an abstract dialectic between "liberty" and "police power," unrelated to a world of trusts and unions, of large-scale industry and all its implications. In the Oregon case, the facts of modern industry which provoke regulatory legislation were, for the first time, adequately marshalled before the Court. It marks an epoch in the disposition of cases presenting the most important present-day constitutional issues.²⁴¹

Otherwise stated, the Brandeis brief is appropriate "where constitutional grants and limitations of power are set forth in general clauses, which afford a broad outline," but not "when the provisions of the Constitution, in grant or restriction, are specific, so particularized as not to admit of construction."²⁴²

Thus, while general concepts of reasonableness are sufficient to sustain many aspects of State criminal procedure against attack based on the Due Process clause of the Fourteenth Amendment—e.g., substituting information for indictment,²⁴³ providing a jury of less than 12 in criminal cases²⁴⁴ or providing for a majority verdict in such cases,²⁴⁵ permitting the prosecution to comment on the defendant's failure to testify,²⁴⁶ granting the prosecution an appeal in criminal cases,²⁴⁷ introducing new concepts of double jeopardy,²⁴⁸ and permitting the use of illegally obtained evidence²⁴⁹—no amount of demonstrable reasonableness would sustain similar Federal action in the face of the specific and explicit limitations of the Bill of Rights. It is for this reason that the existence of foreign legislation, which assists in establishing the reasonableness of domestic legislation challenged on due process grounds,²⁵⁰ failed completely to persuade in three recent cases of military jurisdiction, which turned on specific constitutional prohibitions.²⁵¹ In that field, reasonableness in the abstract is of no help; ²⁵² resort must be had to history and practice.²⁵³

Second, the Brandeis type of brief perverts the most deeply held convictions of its originator when it is used to assemble data showing or tending to show that the law under consideration is unwise or unsound; such arguments are only appropriate when addressed to the legislature.²⁵⁴

Third, the materials adduced must be authoritative, representing matters of general knowledge that are comprehended within the basis on which the Court in Muller v. Oregon²⁵⁵ first accepted the Brandeis brief, viz., "the state of the art" in patent law.²⁵⁶ Consequently ex parte statements by officials whose assertions of power are being challenged do not qualify, particularly when formulated post litem motam. If counsel feels that the existence of facts justifying challenged action must be established, he should prove those facts at the trial, where the officials can be cross-examined.²⁵⁷ These fairly obvious considerations were overlooked in Reid v. Covert²⁵⁸ when the Government on rehearing attempted to prove "The specific practical necessities * * * which justify court-martial jurisdiction over civilian dependents overseas"²⁵⁹ by adducing letters from overseas commanders. It should hardly occasion surprise that the showing thus made failed to convince a majority of the Court.²⁶⁰

In all fairness, however, it can hardly be said that the "practical necessities" issue was one that would have occurred to counsel when the proceedings were instituted. Moreover, since the relief sought was habeas corpus, the statutory requirement that "The court shall summarily hear and determine the facts"²⁶¹ made it obviously impracticable to remand the two cases to the respective district courts where each had originated for the purpose of conducting lengthy hearings. In earlier constitutional litigation...