The most famous brief in American law gave two pages to the law and more than a hundred to the facts. The lawyer’s name is on the method. The facts were found by his wife’s sister, in a month, in two libraries, and almost nobody knows her name.
Josephine Goldmark was not a lawyer. She was the youngest of ten children in a family that had come to New York after the failed revolutions of 1848, a Bryn Mawr graduate who went to work for Florence Kelley at the National Consumers League and stayed for the rest of her working life. The League fought for shorter hours for women and children, and by 1907 it had a problem with a name on it. Oregon had a ten-hour law for women in laundries and factories. A Portland laundry owner named Curt Muller had been fined for working an employee past it, and the case was headed to a Supreme Court that had, in 1905, struck down New York’s ten-hour law for bakers as an interference with liberty of contract. Kelley wanted a lawyer the Court would have to respect. After the first one she asked turned her down, she went to Boston with Goldmark to get Louis Brandeis, who happened to be Goldmark’s brother-in-law.
Brandeis took the case, and he knew what he wanted to file: a brief loaded with facts and spare on formal legal argument. The facts did not exist in any form a lawyer could file. So Goldmark went and made them exist. With her sister Pauline and a handful of volunteers she went through the Columbia University library and the New York Public Library, and in about a month she had pulled the hours laws of twenty states and of Europe and, behind them, the reports of factory inspectors, physicians, trade unions, economists and social workers, everything she could find that anyone had written down about what a fifteen-hour day did to a woman’s body. Her material filled 98 of the brief’s 113 pages. The law got two.
The pattern of the brief was the whole lesson. After a line or two of introduction, Brandeis quoted. Long passages, in the sources’ own words, one after another. He did not argue that long hours broke people. He let a factory inspector say it, then a physician, then a state bureau of labor, and stepped out of the way. When the reader finished he had not been persuaded of anything. He had been shown.
The Court had no shelf for a document like that, and said so. Justice Brewer, writing for a unanimous Court in Muller v. Oregon, stopped before he reached the constitutional question to note that “in the brief filed by Mr. Louis D. Brandeis for the defendant in error is a very copious collection of all these matters.” He allowed that the reports “may not be, technically speaking, authorities,” and then relied on them anyway: “We take judicial cognizance of all matters of general knowledge.” The law stood. The Court had been handed the world instead of the cases, and it took it.
Be honest about what it was used for. Muller upheld the law on the ground that women were a class that needed protecting, and courts leaned on that premise against women for the next sixty years; it is the kind of thinking that Pauli Murray’s Jane Crow and the Reed v. Reed brief finally took apart. Ruth Bader Ginsburg, who wrote that brief and spent a career dismantling the holding, said the advocates who attacked the substance of Muller were “hugely inspired by Brandeis’ method.” Hold on to that distinction. A way of proving a thing can outlive the thing it first proved. And the method here was Goldmark’s.
She did not stop, and she does not seem to have cared whose name went on the cover. She spent five years on Fatigue and Efficiency, published in 1912, a study of what long hours do to a body and to its output, so that the next brief would have its own science instead of borrowed reports. After the Triangle fire she worked with the New York commission that went through the state’s factories. In 1916 Brandeis went to the Court and could not sit on the next Oregon case, so Felix Frankfurter argued it, with a brief that ran 1,060 pages and said on its title page, after his name, assisted by Josephine Goldmark. In 1917 the Court upheld a ten-hour day for anyone working in a mill or factory in the state. Then she turned around and did the same thing for nursing education, more than seventy schools examined, one report, and the profession changed around it.
Here is what she is doing in this Docket. The record is the argument; the Brandeis entry says so. But the record does not gather itself. Somebody has to spend the month in the library, and that somebody is usually not the one who stands up. Charles Hamilton Houston is here for the same reason: the most important lawyer in the case was not in the room. Goldmark is the purest case of it. The entry on the mechanism paragraph tells you to write three sentences, force, body, result, with a source under each one. Fatigue and Efficiency is that paragraph at the length of a book: the hours, then the fatigue, then the injury and the lost output, a report or a physician under every step, and nobody’s adjective anywhere. When you write the demand, do not tell the adjuster the long day was dangerous or the impact was severe. Let the inspector say it, then the doctor, then the study, in their words, with the page number, and get out of the way. The reader will not remember whose name was at the bottom. He will remember that he was shown.
Out read them. Before you are Brandeis in the room, be Goldmark in the library. It is the less famous job, and it is the one the case is actually made of.
Josephine Clara Goldmark (1877 to 1950), born in Brooklyn; Bryn Mawr College, 1898; National Consumers League from 1903, assistant to Florence Kelley and later chairman of its committee on the legal defense of labor laws; compiled the factual record of the brief in Muller v. Oregon, 208 U.S. 412 (1908), and, with Felix Frankfurter, the brief in Bunting v. Oregon, 243 U.S. 426 (1917); author of Fatigue and Efficiency (1912) and Nursing and Nursing Education in the United States (1923); worked with the New York Factory Investigating Commission, 1911 to 1913; her sister Alice was married to Louis Brandeis. Sources: the opinions in Muller and Bunting on Justia; Justice Ginsburg’s remarks at Brandeis University, January 28, 2016; the Bunting brief as published by the National Consumers League (1916), on the Internet Archive; Encyclopaedia Britannica. General information, not legal advice.
