The Brandeis Transient in Patent Instances

by Dennis Crouch

Louis D. Brandeis was a well-known lawyer lengthy earlier than changing into a Supreme Courtroom Justice. Within the 1908 case of Muller v. Oregon, Brandeis represented the State of Oregon defending the state’s rule proscribing the variety of hours that ladies may work in sure industries.  In protection of the legislation, Brandeis filed a short that offered social science analysis and empirical proof to assist the argument that lengthy working hours had destructive results on ladies’s well being and household life.  That proof helped sway the court docket and likewise spawned the “Brandeis temporary” — an method that proceed to be a well-liked mechanism for trying to affect the Supreme Courtroom. Brandeis briefs usually embrace plenty of details and claims about how the world works and ask the court docket to make use of these details in its interpretation of the legislation.  One key downside with this method is that it doesn’t observe the standard guidelines of proof required for factual findings.  And, when the Supreme Courtroom adopts the findings, then the details out of the blue turn out to be the legislation and binding precedent.  Thus, Muller v. Oregon, the Supreme Courtroom precedentially concluded that it was uniquely dangerous for ladies to work lengthy hours and that their pure caregiver function could be improperly disrupted.  Right this moment, we’d acknowledge that these conclusions included inherent cultural biases quite than stemming from the character of ladies.

A significant downside with this kind of evidentiary submission on to the Supreme Courtroom is that it’s unchecked and admittedly biased — these are despatched to the court docket in briefs advocating a specific standpoint and with out the extraordinary judicial evidentiary course of.  However, proponents of Brandeis briefs argue that the foundations don’t apply to those “legislative details” as a result of the proof is getting used to interpret the legislation quite than make case-specific factual conclusions.  That is a lot the identical method because the Courtroom makes use of to find out historic details for originalist choices.  However, many historians would agree that historical past as outlined in Supreme Courtroom circumstances seems to be cherry-picked so as to obtain a specific outcomes.

In patent circumstances, we frequently have Brandeis briefs on the coverage influence of sure decisions.  As well as, we additionally frequently see makes an attempt to clarify the science to the justices in ways in which assist make them a specific conclusion.  In Amgen, as an illustration, Nobel Prize winner Gregory Winter submitted a short explaining that antibody design is extraordinarily unpredictable and, due to that, broad purposeful claims shouldn’t be allowed.   Amgen contended that a few of the proof Winter relied upon had been excluded by the trial court docket, and thus shouldn’t be reintroduced to the Courtroom. However, the follow is prone to persist.